FUNDAMENTALS OF IMMIGRATION LAW

by

Charles A. Wiegand, III

Immigration Judge, Oakdale, Louisiana

Revised October 2011

Philip Verrillo, Immigration Judge, Hartford, Connecticut

Sarah Byrd, Attorney Advisor, Falls Church, Virginia

Alexa McDonnell, Attorney Advisor, Philadelphia, Pennsylvania

Sarah Rempel, Attorney Advisor, Hartford, Connecticut
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TABLE OF CONTENTS

I. The “entry doctrine”. .................................................... 1

A. History lesson. ...................................................... 1

B. Applicants for admission. ............................................. 1

C. Admission or admitted. ............................................... 2

D. Parole and crewmen. ................................................. 2

E. Lawful permanent residents. ........................................... 2

II. Inspection and credible fear review. ........................................ 3

A. Inspection. ......................................................... 3

B. Withdrawal of application for admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Summary removal.................................................... 4

D. Stowaways. ........................................................ 4

E. Credible Fear Interview................................................ 4

F. Inspection of other aliens. ............................................. 5

G. Removal of aliens inadmissible on security and related grounds. . . . . . . . . . . . . . . . 6

III. Bond and custody under IIRIRA. .......................................... 6

A. Background. ........................................................ 6

B. Arriving aliens. ..................................................... 7

C. Detention of criminal aliens. ........................................... 7

D. Detention of aliens certified as terrorists - Section 236A of the Act. . . . . . . . . . . . 13

E. Mass migrations and national security interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

F. Aliens subject to expedited removal..................................... 14

G. All other, non-criminal, non-terrorist, aliens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

H. Procedure in bond proceedings......................................... 17

I. Requests for additional or subsequent bond redeterminations. . . . . . . . . . . . . . . . . 19

J. Appeals of bond decisions. ........................................... 20

IV. Grounds of inadmissibility in removal proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. Health-related grounds - Section 212(a)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. Crime involving moral turpitude (“CIMT”). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

C. Controlled substance offenses.......................................... 25

D. Multiple criminal convictions.......................................... 26

E. Trafficking in controlled substances..................................... 27

F. Prostitution. ....................................................... 28

G. Procurers & importers of prostitutes..................................... 28

H. Commercialized vice. ............................................... 29

I. Aliens who asserted immunity from prosecution - Section 212(a)(2)(E).. . . . . . . . 29

J. Espionage or sabotage................................................ 30

K. Any unlawful activity. ............................................... 30

L. Overthrow of the Government of the U.S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

M. Terrorist activities. .................................................. 31

N. Adverse effects on foreign policy. ...................................... 35
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O. Communist or totalitarian party membership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

P. Nazi persecution. ................................................... 37

Q. Genocide or Acts of Torture or Extrajudicial Killing.. . . . . . . . . . . . . . . . . . . . . . . 37

R. Public Charge. ..................................................... 37

S. No labor certification. ............................................... 38

T. Foreign medical graduates. ........................................... 38

U. Uncertified foreign health-care workers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

V. Illegal entrants and immigration violators. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

W. Not in possession of valid, unexpired documents.. . . . . . . . . . . . . . . . . . . . . . . . . . 41

X. Not in possession of valid entry documents, such as visa. . . . . . . . . . . . . . . . . . . . 41

Y. Immigrants who are permanently ineligible for citizenship - Section

212(a)(8)(A). ...................................................... 42

Z. Draft evaders....................................................... 42

AA. Aliens previously removed or unlawfully present. . . . . . . . . . . . . . . . . . . . . . . . . . 42

BB. Polygamists. ....................................................... 46

CC. Guardian required to accompany helpless alien. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

DD. International child abductors........................................... 46

EE. Unlawful voters..................................................... 46

FF. Former citizens who renounced citizenship to avoid taxation. . . . . . . . . . . . . . . . . 47

V. Grounds of deportability in removal proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

A. Inadmissible at time of entry or adjustment of status. . . . . . . . . . . . . . . . . . . . . . . . 47

B. Present in violation of law. ........................................... 47

C. Violated nonimmigrant status.......................................... 47

D. Violators of conditions of entry. ....................................... 47

E. Termination of conditional permanent residence. . . . . . . . . . . . . . . . . . . . . . . . . . . 47

F. Alien smuggling. ................................................... 48

G. Marriage fraud...................................................... 49

H. CIMT w/in 5 years of admission........................................ 49

I. Two CIMTs........................................................ 50

J. Convicted of an aggravated felony...................................... 53

K. Convicted of high speed flight. ........................................ 54

L. Failure to register as a sex offender. .................................... 54

M. Controlled substance conviction . ...................................... 54

N. Drug abusers and addicts. ............................................ 58

O. Firearm offenses. ................................................... 58

P. Miscellaneous crimes. ............................................... 63

Q. Crimes of domestic violence, stalking, and child abuse. . . . . . . . . . . . . . . . . . . . . . 63

R. Violators of protection orders. ......................................... 65

S. Failure to register. .................................................. 65

T. Document fraud. ................................................... 66

U. Falsely claiming citizenship. .......................................... 66

V. National security and related grounds.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

W. Terrorist activities. .................................................. 67

X. Adverse foreign policy consequences.................................... 67

Y. Assisted in Nazi persecution or engaged in genocide.. . . . . . . . . . . . . . . . . . . . . . . 68
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Z. Public Charge. ..................................................... 68

AA. Unlawful voters..................................................... 68

BB. Deportation of certain nonimmigrants prohibited without approval. . . . . . . . . . . . 68

CC. Waiver under section 237(c) for special immigrants. . . . . . . . . . . . . . . . . . . . . . . . 69

VI. Procedure in removal proceedings. ........................................ 69

A. Notice to the alien. .................................................. 69

B. Service of the NTA. ................................................. 72

C. Cancellation of the NTA, motions to dismiss and remand, and termination by

the IJ. ............................................................ 74

D. Hearing in removal proceedings. ....................................... 76

E. Failure to appear - in absentia hearings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

F. Stipulated removal. ................................................. 90

G. Methods of removal not involving an IJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

VII. Relief from Removal. ................................................... 91

A. Background and Security Investigations in Proceedings Before an IJ. . . . . . . . . . . 91

B. Voluntary departure - Section 240B. .................................... 92

C. Withdrawal of application for admission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

D. Citizenship. ...................................................... 100

E. Cancellation of removal for certain permanent residents under section 240A(a)

and for certain nonpermanent residents under section 240A(b). . . . . . . . . . . . . . . 100

F. A waiver under former section 212(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

G. Asylum. ......................................................... 128

H. Withholding of removal - Section 241(b)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

I. Case law common to both asylum and withholding of removal.. . . . . . . . . . . . . . 153

J. The Convention Against Torture. ..................................... 187

K. Adjustment of status - Section 245 of the Act and 8 C.F.R. § 1245.1, et seq.. . . . 194

L. Waivers. ......................................................... 213

M. Nicaraguan Adjustment and Central American Relief Act (NACARA).. . . . . . . . 233

N. Advance parole. ................................................... 239

VIII. Defenses to removability available to aliens convicted of crimes. . . . . . . . . . . . . . . 239

A. Introduction....................................................... 239

B. The charge requires a conviction and the conviction does not support the

charge. .......................................................... 239

C. Judicial Recommendations Against Deportation (“JRADS”). . . . . . . . . . . . . . . . 259

D. Juvenile delinquency................................................ 260

IX. Evidence. ............................................................ 261

A. In general......................................................... 261

B. Burden of proof and presumptions..................................... 261

C. Documents.. ...................................................... 265

D. Testimony........................................................ 272

E. Hearsay. ......................................................... 274
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F. Evidence from an application to adjust an alien’s status to that of a lawful

temporary resident under section 210 of the Act. . . . . . . . . . . . . . . . . . . . . . . . . . 274

G. The exclusionary rule in immigration proceedings and motions to suppress. . . . . 275

H. The doctrine of equitable estoppel...................................... 287

I. The doctrine of collateral estoppel or res judicata. . . . . . . . . . . . . . . . . . . . . . . . . 287

J. Classified information.. ............................................. 293

K. Protective orders. .................................................. 293

L. Constitutional issues. ............................................... 296

M. Administrative notice. .............................................. 296

N. Items which are not evidence. ........................................ 298

O. An IJ’s duties regarding evidence.. .................................... 298

X. Aggravated felonies. ................................................... 299

A. Background. ...................................................... 299

B. Murder, rape, or sexual abuse of a minor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

C. Illicit trafficking in any controlled substance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

D. Illicit trafficking in firearms or destructive devices .. . . . . . . . . . . . . . . . . . . . . . . 303

E. Laundering of monetary instruments. .................................. 304

F. Explosive materials and firearms offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304

G. A crime of violence................................................. 307

H. Theft, burglary, and receipt of stolen property. . . . . . . . . . . . . . . . . . . . . . . . . . . . 316

I. Demand for or receipt of ransom. ..................................... 319

J. Child pornography. ................................................ 320

K. Racketeering or gambling. ........................................... 320

L. Prostitution, slavery, or involuntary servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

M. Treason or transmitting national defense information. . . . . . . . . . . . . . . . . . . . . . 321

N. An offense that involves fraud or deceit in which the loss to the victim or

victims exceeds $10,000 or an offense related to tax evasion . . . . . . . . . . . . . . . . 321

O. Alien smuggling. .................................................. 323

P. Illegal reentry. .................................................... 324

Q. Falsely making, forging, counterfeiting, mutilating, or altering a passport or

instrument. ....................................................... 324

R. Failure to appear for service of sentence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324

S. Commercial bribery, counterfeiting, forgery, or trafficking in vehicles. . . . . . . . . 324

T. Obstruction of justice, perjury, or bribery of a witness.. . . . . . . . . . . . . . . . . . . . . 325

U. Failure to appear before a court pursuant to a court order to answer to or

dispose of a charge of a felony ........................................ 325

V. An attempt or conspiracy to commit any such act described above. . . . . . . . . . . . 325

W. Limitations by date of conviction, etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326

XI. Good moral character (“GMC”) - Section 101(f) of the Act. . . . . . . . . . . . . . . . . . . 327

A. Requirement of Good Moral Character. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327

B. Persons lacking good moral character as listed in section 101(f). . . . . . . . . . . . . . 327

C. Catch-all provision of section 101(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
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XII. Temporary protected status (TPS) - Section 244. . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

A. A grant of TPS waives certain grounds of inadmissibility or deportability .. . . . . 332

B. Designation by the Attorney General. .................................. 332

C. Effective period of designation........................................ 333

D. Jurisdiction to consider applications.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333

E. Aliens eligible for TPS .............................................. 335

F. Withdrawal of TPS - Section 244(c)(3) of the Act. . . . . . . . . . . . . . . . . . . . . . . . . 337

G. TPS and cancellation of removal under section 240A(a). . . . . . . . . . . . . . . . . . . . 338

H. Benefits and status during TPS - Section 244(f) of the Act... . . . . . . . . . . . . . . . . 338

I. Countries that have been designated for TPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338

XIII. Motions to reopen, reconsider, and remand under the IIRIRA. . . . . . . . . . . . . . . . 341

A. Motion to reopen................................................... 341

B. Motion to reconsider................................................ 343

C. Motions to reopen in general. ........................................ 343

D. Motion to reopen to apply for asylum or withholding of removal. . . . . . . . . . . . . 347

E. Motion to reopen to rescind a removal order rendered in absentia.. . . . . . . . . . . . 348

F. Motions to reopen orders that were entered in absentia in deportation

proceedings. ...................................................... 350

G. Motions to reopen orders that were entered in absentia in exclusion

proceedings.. ..................................................... 350

H. A motion to reopen or reconsider based upon a claim of ineffective assistance

of counsel. ....................................................... 351

I. Motion to reopen in order to apply for adjustment of status.. . . . . . . . . . . . . . . . . 355

J. Motion to reopen to apply for cancellation of removal under section 240A of

the Act........................................................... 357

K. Where to file the motion. ............................................ 358

L. Sua sponte reopening or reconsideration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358

XIV. Appeals to the Board from decisions made by an IJ. . . . . . . . . . . . . . . . . . . . . . . . . 359

A. Notice of right to appeal............................................. 359

B. Filing the appeal. .................................................. 359

C. Time limits for appeal............................................... 359

D. The appealing parties . .............................................. 360

E. Fee for appeal. .................................................... 360

F. Representation by counsel. .......................................... 361

G. Proof of service. ................................................... 361

H. Waiving Appeal. .................................................. 361

I. Standard of review on appeal. ........................................ 362

J. Interlocutory appeals................................................ 363

K. Appeals from in absentia orders of removal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

L. Withdrawal of appeal. .............................................. 364

M. Certification. ..................................................... 364

N. Remand from Board for background and security checks.. . . . . . . . . . . . . . . . . . . 365
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I. The “entry doctrine”

A. History lesson

1. Before the enactment of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”), the decision as to whether an alien

was subject to deportation proceedings or exclusion proceedings was based on

whether or not the alien had made an “entry” into the U.S. An alien who had

made an entry was entitled to a deportation hearing and the greater procedural

safeguards it provided. An alien who had not made an entry was placed in

exclusion proceedings. Former section 101(a)(13) of the Act defined entry as

“any coming of an alien into the U.S. from a foreign port or place.” The

Board of Immigration Appeals (“Board”) formulated a more precise definition

of entry so as to better distinguish between exclusion and deportation in 

Matter of Pierre, 14 I&N Dec. 467 (BIA 1973), Matter of Phelisna, 18 I&N

Dec. 272 (BIA 1982), and Matter of G-, 20 I&N Dec. 764 (BIA 1993). All of

this came to be known as “the entry doctrine.”

2. An exception also arose for lawful permanent residents (“LPR”s) returning to

the U.S. after a brief, casual, and innocent departure. The Supreme Court held

that such a departure would not constitute an “entry” within the meaning of

former section 101(a)(13). Rosenberg v. Fleuti, 374 U.S. 449 (1963). This

became known as the “Fleuti Doctrine.”

3. These two doctrines caused a great deal of litigation over the issue of whether

certain aliens were properly placed in exclusion proceedings. They were

rather time consuming and, since they dealt with the issue of whether or not

the alien was in the proper proceeding, delayed the addressing of the ultimate

issues in the cases, i.e. the issues of excludability and eligibility for relief.

4. In the IIRIRA, Congress sought to simplify things by creating removal

proceedings which are applicable to aliens admitted to the United States,

aliens applying for admission, and aliens present in the United States without

being inspected and admitted. It also made the difference dependent simply

on whether the alien had been admitted or not.

B. Applicants for admission

1. Section 235(a)(1) of the Act provides that “An alien present in the United

States who has not been admitted or who arrives in the United States (whether

or not at a designated port of arrival and including an alien who is brought to

the United States after having been interdicted in international or United

States waters) shall be deemed for purposes of this Act an applicant for

admission.”
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2. The term “arriving alien” means an alien who seeks admission to or transit

through the United States, as provided in 8 C.F.R. § 1235.1, at a port of entry,

or an alien who is interdicted in international or United States waters and

brought into the United States by any means, whether or not to a designated

port-of-entry, and regardless of the means of transport. 8 C.F.R. § 1001.1(q).

3. An arriving alien remains such even if paroled pursuant to section 212(d)(5) of

the Act. 8 C.F.R. § 1001.1(q).

4. An alien who leaves the U.S. to seek refugee status in Canada, and then

returns to the U.S. after the application was denied in Canada, is deemed to be

seeking admission to the U.S. Therefore, such an alien is deemed to be an

arriving alien. Matter of R-D-, 24 I&N Dec. 221 (BIA 2007).

C. Admission or admitted

1. Section 101(a)(13)(A) of the Act, as amended by section 301 of the IIRIRA,

provides that the terms “admission” and “admitted” mean the lawful entry of

an alien into the U.S. after inspection and authorization by an immigration

officer.

2. An alien who has not been admitted to the United States is subject to the

inadmissibility grounds under section 212(a) of the Act, 8 U.S.C. § 1182(a). 

Pursuant to 237(a) of the Act, 8 U.S.C. § 1227(a), an alien (including an alien

crew member) in and admitted to the United States is subject to the

deportation grounds under that section. Under section 237(a)(1)(A) of the

Act, deportable aliens includes any alien who was inadmissible at the time of

entry or adjustment of status.

3. The Board held that an alien who initially entered the U.S. without inspection,

but whose conviction for an aggravated felony was subsequent to her

adjustment of status to that of a lawful permanent resident under section 245A

of the Act, is deportable under section 237(a)(2)(A)(iii) of the Act as an alien

who was convicted of an aggravated felony “after admission.” Matter of

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

D. Parole and crewmen

1. An alien who is paroled under section 212(d)(5) of the Act or permitted to

land temporarily as a crewman shall not be considered to have been admitted. 

INA § 101(a)(13)(B).

E. Lawful permanent residents
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1. Section 101(a)(13)(C) of the Act provides that an alien lawfully admitted for

permanent residence shall not be regarded as seeking an admission into the

U.S. unless the alien:

a. has abandoned or relinquished LPR status [INA § 101(a)(13)(C)(i)];

b. has been absent from the U.S. for a continuous period in excess of 180

days [INA § 101(a)(13)(C)(ii)];

c. has engaged in illegal activity after departing the U.S. [INA §

101(a)(13)(C)(iii)];

d. has departed from the U.S. while under legal process seeking removal of

the alien from the U.S., including removal proceedings and extradition

proceedings [INA § 101(a)(13)(C)(iv)];

e. has committed an offense identified in section 212(a)(2) of the Act,

unless since such offense the alien has been granted relief under section

212(h) or 240A(a) [INA § 101(a)(13)(C)(v)];

f. is attempting to enter at a time or place other than as designated by

immigration officers or has not been admitted to the U.S. after

inspection and authorization by an immigration officer [INA §

101(a)(13)(C)(vi)].

(1) The Board has held that the Fleuti doctrine, which required the

admission of a LPR returning from a brief, casual, and innocent

departure, did not survive the amendment of section 101(a)(13) of

the Act by IIRIRA. Matter of Collado, 21 I&N Dec. 1061 (BIA

1998). In that same decision, the Board held that an LPR described

in section 101(a)(13)(i)-(vi) of the Act is to be regarded as “seeking

an admission into the U.S. for purposes of the immigration laws,”

without further inquiry into the nature and circumstances of a

departure from and return to the U.S.

2. In order to establish that a returning lawful permanent resident alien is to be

treated as an applicant for admission to the United States, the Department of

Homeland Security has the burden of proving by clear and convincing

evidence that one of the six exceptions to the general rule for lawful

permanent residents set forth at section 101(a)(13)(C) of Act applies. Matter

of Rivens, 25 I&N Dec. 623 (BIA 2011).

II. Inspection and credible fear review

A. Inspection
page 4 of 365

1. All aliens (including alien crewmen) who are applicants for admission or

otherwise seeking admission or readmission to or transit through the U.S. shall

be inspected by immigration officers. INA § 235(a)(3).

2. Parolees and aliens formerly considered to have entered without inspection. 

Section 235(a)(1) of the Act provides that an alien present in the U.S. who has

not been admitted or who arrives in the U.S. (whether or not at a designated

port of arrival and including an alien who is brought to the U.S. after having

been interdicted in international or U.S. waters) shall be deemed an applicant

for admission.

3. Statements. An applicant for admission may be required to state under oath

any information sought by an immigration officer regarding the purposes and

intentions of the applicant in seeking admission to the U.S., including the

applicant's intended length of stay and whether the applicant intends to remain

permanently or become a U.S. citizen, and whether the applicant is

inadmissible. INA § 235(a)(5).

B. Withdrawal of application for admission

1. An alien applying for admission may, in the discretion of the Attorney General

and at any time, be permitted to withdraw the application for admission and

depart immediately from the U.S. INA § 235(a)(4).

C. Summary removal

1. An immigration officer shall order an alien removed from the United States

without further hearing or review if: (1) the alien is not an alien described at

section 235(b)(1)(F); and (2) the alien is arriving in the United States; or (3)

the alien is described at section 235(b)(1)(A)(iii); and (4) the alien is

inadmissible under section 212(a)(6)(C) or 212(a)(7); unless (5) the alien

indicates either an intention to apply for asylum under section 208 or a fear of

persecution. INA § 235(b)(1)(A)(i).

D. Stowaways

1. An arriving alien who is a stowaway is not eligible to apply for admission or

to be admitted and shall be ordered removed upon inspection by an

immigration officer unless the alien indicates an intention to apply for asylum

or a fear of persecution. INA § 235(a)(2).

E. Credible Fear Interview

1. An alien who indicates either an intention to apply for asylum under section

208 or a fear of persecution shall be referred for an interview by an asylum

officer. INA § 235(b)(1)(B)(ii).
page 5 of 365

a. If the officer determines at the time of the interview that an alien has a 

credible fear of persecution, the alien shall be detained for further

consideration of the application for asylum. INA § 235(b)(1)(A)(ii).

(1) A credible fear of persecution means that there is a significant

possibility, taking into account the credibility of the statements

made by the alien in support of his claim and such other facts as

are known to the officer, that the alien could establish eligibility for

asylum under section 208. INA § 235(b)(1)(B)(v).

b. If the officer determines that the alien does not have a credible fear of

persecution, the officer shall order the alien removed from the U.S.

without further hearing or review. INA § 235(b)(1)(B)(iii)(I). The

officer shall prepare a written record of a determination. INA §

235(b)(1)(B)(iii)(II). Such record shall include a summary of the

material facts as stated by the applicant, such additional facts (if any)

relied upon by the officer, and the officer's analysis of why the alien has

not established a credible fear of persecution. Id. A copy of the officer's

interview notes shall be attached to the written summary. Id. The

Attorney General shall provide by regulation and upon the alien’s

request for prompt review by an IJ of the determination that the alien

does not have a credible fear of persecution. INA §

235(b)(1)(B)(iii)(III). Such review shall include an opportunity for the

alien to be heard and questioned by the IJ either in person or by

telephonic or video connection. Id. Review shall be concluded, if

possible, within 24 hours, but in no case later than 7 days after the date

of the asylum officer’s determination. Id. Such alien shall be detained

pending a final determination of credible fear of persecution and, if

found not to have such a fear, until removed. INA §

235(b)(1)(B)(iii)(IV).

F. Inspection of other aliens

1. Except for an alien described above [inadmissible under section 212(a)(6)(C)

or 212(a)(7) of the Act], an alien who is a crewman, or an alien who is a

stowaway, if the examining officer determines that an alien seeking admission

is not clearly and beyond a doubt entitled to be admitted, the alien shall be

detained for a proceeding under section 240 of the Act. INA § 235(b)(2)(A)-

(B). 

2. Aliens arriving from foreign contiguous territory. In the case of an alien

arriving on land (whether or not at a designated port of arrival) from a foreign

territory contiguous to the U.S., the Attorney General may return the alien to

that territory pending a proceeding under section 240 of the Act. INA §

235(b)(2)(C).
page 6 of 365

3. Challenge of decision. The decision of the examining immigration officer, if

favorable to the admission of any alien, shall be subject to challenge by any

other immigration officer and such challenge shall operate to take the alien

whose privilege to be admitted is so challenged, before an IJ for a proceeding

under section 240 of the Act. INA § 235(b)(3).

G. Removal of aliens inadmissible on security and related grounds

1. If an immigration officer or an IJ suspects that an arriving alien may be

inadmissible under section 212(a)(3)(A) [other than clause (ii)], (B), or (C),

the officer or judge shall order the alien removed, report the order of removal

to the Attorney General, and not conduct any further inquiry or hearing until

ordered by the Attorney General. INA § 235(c)(1). Section 235(c)(3) of the

Act provides that the alien or the alien’s representative may submit a written

statement and additional information for consideration by the Attorney

General.

2. If the Attorney General is satisfied on the basis of confidential information

that the alien is inadmissible under the portions of section 212(a)(3) of the Act

listed above and after consulting with appropriate security agencies concludes

that disclosure of the information would be prejudicial to the public interest,

safety, or security, the Attorney General may order the alien removed without

further inquiry or hearing by an IJ. INA § 235(c)(2)(B). If the Attorney

General does not order the alien removed, the Attorney General shall specify

the further inquiry or hearing that shall be conducted in the case. INA §

235(c)(2)(C).

III. Bond and custody under IIRIRA

A. Background

1. Section 236(a) of the Act provides that on a warrant issued by the Attorney

General, an alien may be arrested and detained pending a decision on whether

the alien is to be removed from the U.S. In a custody redetermination under

section 236(a), where an alien must establish to the satisfaction of the IJ that

he or she does not present a danger to others, a threat to national security, or a

flight risk, the IJ has wide discretion in deciding the factors that may be

considered. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).

2. Transition Period Custody Rules. The TPCR were a temporary “stop-gap”

measure invoked after the IIRIRA’s enactment to address the lack of detention

space necessary to immediately implement the mandatory detention rule of

section 236(c)(1) of the Act. Under the TPCR, IJs had retained discretionary

authority to release certain criminal aliens upon a demonstration that they did
page 7 of 365

not present a danger to the community or a flight risk. That discretion ended

with the TPCR’s expiration on October 8, 1998.

B. Arriving aliens

1. An IJ has no authority to redetermine or set bond for an arriving alien. 8

C.F.R. § 1003.19(h)(1)(i)(B).

2. An alien who arrives in the U.S. pursuant to a grant of advance parole is an

“arriving alien” as that term is defined in the regulations. Matter of Oseiwusu,

22 I&N Dec. 19 (BIA 1998). According to the regulations, an IJ has no

authority over the apprehension, custody, and detention of arriving aliens and

is therefore without authority to consider the bond request of an alien

returning pursuant to a grant of advance parole. Id. 

C. Detention of criminal aliens

1. Section 236(c)(1) of the Act provides that the Attorney General shall take into

custody any alien who is inadmissible by reason of having committed any

offense covered in section 212(a)(2), is deportable by reason of having

committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C),

or (D), is deportable under section 237(a)(2)(A)(i) on the basis of an offense

for which the alien has been sentenced to a term of imprisonment of at least 1

year, or is inadmissible under section 212(a)(3)(B) or deportable under section

237(a)(4)(B) when the alien is released, without regard to whether the alien is

released on parole, supervised release, or probation, and without regard to

whether the alien may be arrested or imprisoned again for the same offense.

2. Constitutionality. The Supreme Court upheld the constitutionality of section

236(c)(1) of the Act. Demore v. Kim, 538 U.S. 510 (2003).

3. The Ninth Circuit has held that authorization for detention under INA

section 236(c) ends when the Board of Immigration Appeals affirms the

removal order. Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008). 

“Thereafter, the Attorney General’s detention authority rests with [the general

discretionary authority to detain under section 236(a)] until the alien enters his

‘removal period,’ which occurs only after we have rejected his final petition

for review or his time to seek such review expires.” Id. at 948. The Ninth

Circuit further ruled that “the government may not detain a legal permanent

resident . . . for a prolonged period without providing him a neutral forum in

which to contest the necessity of his continued detention.” Id. at 949.

4. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), the Ninth Circuit held

that an individual facing prolonged immigration detention under section

241(a)(6) of the Act, is entitled to be released on bond unless the government

establishes the individual is a flight risk or a danger to the community. The
On March 1, 2003, the Immigration and Naturalization Service ceased to exist as an agency under the U.S. 1

Department of Justice and became a part of the newly-formed Department of Homeland Security. In this outline, the

Department of Homeland Security will continue to be referred to as the DHS or, where appropriate, the INS, the

Service, or alternatively, the Government.

page 8 of 365

court reasoned that individuals detained under section 241(a)(6) of the Act are

entitled to the same procedural safeguards against prolonged detention as

individuals detained under section 236(a) of the Act, including an

individualized bond hearing before an IJ. Id. at 1085. The court

acknowledged that it was extending its holding in Casas-Castrillon v. DHS,

535 F.3d 942 (9th Cir. 2008). See page 20 below for discussion of appeals of

bond decisions.

5. “When released”

a. In a decision regarding the Transition Period Custody Rules (“TPCR”)

which became effective on October 9, 1996, the Board held that the

“when released” clause did not describe a class of aliens, but rather was

an instruction to the Attorney General as to when the alien was to be

taken into custody. Matter of Noble, 21 I&N Dec. 672 (BIA 1997).

Therefore, the rules applied irrespective of how or when the alien came

into Service custody. Id. However, the INS later reversed its position 1

on this issue and, in a later decision, the Board held that section 236(c)

of the Act does not apply to aliens whose most recent release from

custody by an authority other than the INS occurred prior to the

expiration of the TPCR on October 8, 1998. Matter of Adeniji, 22 I&N

Dec. 1102 (BIA 1999). Custody determinations of aliens in removal

proceedings who are not subject to the provisions of section 236(c) of

the Act are governed by the general custody provisions at section 236(a)

of the Act. Id. However, by virtue of 8 C.F.R. § 1236.1(c)(8), a criminal

alien in a custody determination under section 236(a) of the Act must

establish to the satisfaction of the IJ and the Board of Immigration

Appeals that he or she does not present a danger to property or persons. 

Id. In Matter of Garcia-Arreola, 25 I&N Dec. 267 (BIA 2010), the

Board modified its decision in Matter of Adeniji and held that section

236(c) of the Act requires mandatory detention of a criminal alien only if

he or she is released from non-DHS custody after the expiration of the

TPCR and only where there has been a post-TPCR release that is directly

tied to the basis for detention under sections 236(c)(1)(A)–(D) of the

Act.

(1) The Board had previously ruled in Matter of Saysana, 24 I&N Dec.

602 (BIA 2008) that the mandatory detention provision in

section 236(c)(1) “does not support limiting the non-DHS custodial

setting solely to criminal custody tied to the basis for detention

under that section.” The Board’s decision in Matter of Garcia-
page 9 of 365

Arreola specifically overruled Matter of Saysana. But see Saysana

v. Gillen, 590 F.3d 7 (1st Cir. 2009) (disagreeing with the Board’s

reading of the mandatory detention provision and finding that the

text of the statute is clear that the “when released” language applies

to an alien who has been detained criminally for one of the

activities listed in the statute, rather than any release from any nonDHS custody).

b. A criminal alien who is released from criminal custody after the

expiration of the Transition Period Custody Rules is subject to

mandatory detention pursuant to section 236(c) of the Act even if the

alien is not immediately taken into custody by the Service when released

from incarceration. Matter of Rojas, 23 I&N Dec. 117 (BIA 2001).

c. The Board has also held that the use of the words “release” or “released”

in section 303 of the IIRIRA consistently appears to refer to a form of

physical restraint. Matter of West, 22 I&N Dec. 1405 (BIA 2000).

Therefore, the mandatory detention provisions of section 236(c) of the

Act do not apply to an alien who was convicted after the expiration of

the Transition Period Custody Rules, but who was last released from the

physical custody of state authorities prior to the expiration of those rules

and who was not physically confined or restrained as a result of that

conviction, i.e. sentenced to probation or given a suspended sentence. Id.

d. In Matter of West, 22 I&N Dec. 1405 (BIA 2000), the Board stated that

the word “released” can also refer to release from physical custody

following arrest, not just a sentence.

e. The Board held in Matter of Kotliar, 24 I&N Dec. 124 (BIA 2007), that

an alien apprehended at home while on probation for criminal

convictions is subject to the provisions of section 236(c)(1), provided it

can be ascertained that he was released from criminal custody after the

expiration of the Transition Period Custody Rules. 

6. Danger to property or persons

a. In bond proceedings under the Transition Period Custody Rules, the

standards set forth in Matter of Drysdale, 20 I&N Dec. 815 (BIA 1994),

apply to the determinations of whether the alien’s release from custody

during deportation proceedings will pose a danger to the safety of

persons or of property and whether the alien is likely to appear for any

scheduled proceeding. Matter of Melo, 21 I&N Dec. 883 (BIA 1997). 

In Matter of Drysdale, the Board found that the statutory framework

under former section 242(a)(2)(B) of the Act involved a two-step

analysis. If the alien cannot demonstrate that he is not a threat to the

community, he should be detained in the custody of the Service. 20 I&N
page 10 of 365

Dec. 815. If the alien rebuts the presumption that he is a threat to the

community, then the likelihood that he will abscond becomes relevant. 

This finding was based on the statutory language that the alien must

show he is “likely” to appear for any scheduled hearing, rather than a

showing that he “will appear.” Unlike the standard for determining if

there is a danger to the community, this language allowed for flexibility

since the likelihood of appearance could vary from none to great. 

Therefore, if an alien overcomes the presumption that he is a threat to

the community, the IJ should set a bond according to his assessment of

the amount needed to motivate the respondent to appear in light of the

considerations deemed relevant to bond determinations.

(1) In Matter of Urena, 25 I&N Dec. 140 (BIA 2009), the Board

emphasized that the IJ should only set a bond if the alien meets his

burden of proof that his release would not pose a danger to

property or persons. Only after the alien has met that burden of

proof can the IJ determine the flight risk posed by the alien and the

amount of bond appropriate to ensure the alien’s presence at future

proceedings. Id. at 141.

b. The phrase “is deportable” as used in the Transition Period Custody

Rules does not require that an alien have been charged and found

deportable on that deportation ground. Matter of Melo, 21 I&N Dec.

883 (BIA 1997). See also Matter of Kotliar, 24 I&N Dec. 124 (BIA

2007) (holding that an alien need not be charged with the ground that

provides the basis for mandatory detention to be considered “deportable”

on that ground).

c. The Transition Period Custody Rules do not limit "danger to the safety

of persons or of property" to the threat of direct physical violence. Matter

of Melo, 21 I&N Dec. 883 (BIA 1997). The risk of continued narcotics

trafficking also constitutes a danger to the safety of persons. Id.

d. The Transition Period Custody Rules expired in 1998. However, the law

regarding danger to the safety of persons or property appears to remain

applicable.

7. Section 236(c)(2) provides that the Attorney General may release an alien

described above only if the Attorney General decides pursuant to 18 U.S.C. §

3521 that release of the alien from custody is necessary to provide protection

to a witness, a potential witness, a person cooperating with an investigation

into major criminal activity, or an immediate family member or close

associate of a witness, potential witness, or person cooperating with such an

investigation, and the alien satisfies the Attorney General that the alien will

not pose a danger to the safety of other persons or of property and is likely to

appear for any scheduled proceeding. A decision relating to such release shall
page 11 of 365

take place in accordance with a procedure that considers the severity of the

offense committed by the alien.

8. 8 C.F.R. § 1003.19(h)(2)(i) provides that upon the expiration of the Transition

Period Custody Rules, an IJ may not redetermine conditions of custody

imposed by the Service with respect to the following classes of aliens:

a. Aliens in exclusion proceedings;

b. Arriving aliens in removal proceedings, including aliens paroled after

arrival pursuant to section 212(d)(5) of the Act;

c. Aliens described in section 237(a)(4) of the Act;

d. Aliens in removal proceedings subject to section 236(c)(1) of the Act;

and

e. Aliens in deportation proceedings subject to section 242(a)(2) of the Act

as in effect prior to April 1, 1997.

9. However, 8 C.F.R. § 1003.19(h)(2)(ii) provides that “Nothing in this

paragraph shall be construed as prohibiting an alien from seeking a

redetermination of custody conditions by the Service in accordance with part

1235 or 1236 of this chapter. In addition, with respect to paragraphs

(h)(2)(i)(C), (D), and (E) of this section, nothing in this paragraph shall be

construed as prohibiting an alien from seeking a determination by an

immigration judge that the alien is not properly included within any of those

paragraphs.”

a. For purposes of determining the custody conditions of a lawful

permanent resident under section 236 of the Act, and 8 C.F.R.

§ 1003.19(h)(2)(ii), a lawful permanent resident will not be considered

“properly included” in a mandatory detention category when an IJ or the

Board of Immigration Appeals finds, on the basis of the bond record as a

whole, that it is substantially unlikely that the Immigration and

Naturalization Service will prevail on a charge of removability specified

in section 236(c)(1) of the Act. Matter of Joseph, 22 I&N Dec. 799 (BIA

1999).

b. Although a conviction document may provide the Service with sufficient

reason to believe that an alien is removable under one of the mandatory

detention grounds for purposes of charging the alien and making an

initial custody determination, neither the IJ nor the Board is bound by

the Service’s decisions in that regard when determining whether an alien

is properly included within one of the regulatory provisions that would

deprive the IJ and the Board of jurisdiction to redetermine the custody
page 12 of 365

conditions imposed on the alien by the Service. Matter of Joseph, 22

I&N Dec. 799 (BIA 1999).

c. When an IJ’s removal decision precedes the determination, pursuant to 8

C.F.R. § 1003.19(h)(2)(ii), whether an alien is “properly included” in a

mandatory detention category, the removal decision may properly form

the basis for that determination. Matter of Joseph, 22 I&N Dec. 799

(BIA 1999). When an IJ bases a bond determination on evidence

presented in the underlying merits case, it is the responsibility of the

parties and the IJ to ensure that the bond record establishes the nature

and substance of the specific factual information considered by the IJ in

reaching the bond determination. Matter of Adeniji, 22 I&N Dec. 1102

(BIA 1999).

d. In assessing whether an alien is “properly included” in a mandatory

detention category during a bond hearing taking place early in the

removal process, the IJ must necessarily look forward to what is likely to

be shown during the hearing on the underlying removal case. Matter of

Joseph, 22 I&N Dec. 799 (BIA 1999). Thus, for example, the failure of

the Service to possess a certified copy of a conviction record shortly

after taking an alien into custody would not necessarily be indicative of

its ability to produce such a record at the merits hearing. Id.

10. 8 C.F.R. § 1003.19(h)(4) provides that a determination by a district director

(“DD”) or other designated official regarding the exercise of authority under

section 303(b)(3)(B)(ii) of Pub. L. 104-208 (concerning release of aliens who

cannot be removed) is final, and shall not be subject to redetermination by an

IJ.

11. 8 C.F.R. § 1003.19(i)(1) provides that the Board has the authority to stay the

custody order of an IJ when the Service appeals the custody decision and the

Service is entitled to seek an emergency stay from the Board in connection

with such an appeal at any time.

12. 8 C.F.R. § 1003.19(i)(2) provides that in any case in which the DHS

determined that an alien should not be released and has set a bond of $10,000

or more, any order of the IJ authorizing release (on bond or otherwise) shall be

stayed upon the DHS’s filing of a Notice of Service Intent to Appeal Custody

Redetermination (Form EOIR-43), with the Immigration Court within one

business day of the order, except as otherwise provided in 8 C.F.R. §

1003.6(c), and shall remain in abeyance pending decision of the appeal by the

Board of Immigration Appeals. The stay shall lapse upon failure of the

Service to file a timely notice of appeal in accordance with 8 C.F.R. §

1003.38.
page 13 of 365

a. An automatic stay of an IJ’s release order that has been invoked by the

Service pursuant to 8 C.F.R. § 1003.19(i)(2) is extinguished by the

Board’s decision in the Service’s bond appeal from that release order. 

Matter of Joseph, 22 I&N Dec. 799 (BIA 1999).

D. Detention of aliens certified as terrorists - Section 236A of the Act

1. Section 412 of the Uniting and Strengthening America by Providing

Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,

Pub. L. No. 107-56 (“USA Patriot Act”) added section 236A to the Act.

2. Section 236A provides that the Attorney General shall take into custody any

alien who is certified under section 236A(a)(3). INA § 236A(a)(1).

3. Section 236A(a)(3) provides that the Attorney General may certify an alien

under this paragraph if the Attorney General has reasonable grounds to believe

that the alien is described in

a. Section 212(a)(3)(A)(i) - an alien seeking to enter the U.S. to engage

in espionage or sabotage.

b. Section 212(a)(3)(A)(iii) - an alien seeking to enter the U.S. to engage

in any activity a purpose of which is the

overthrow of the government of the U.S. by

force, violence, or other unlawful means.

c. Section 212(a)(3)(B) - an alien engaged in terrorist activity

d. Section 237(a)(4)(A)(i) - engaged in espionage or sabotage.

e. Section 237(a)(4)(A)(iii) - an alien engaged in any activity a purpose of

which is the overthrow of the government of

the U.S. by force, violence, or other

unlawful means.

f. Section 237(a)(4)(B) - an alien engaged in terrorist activity.

g. Or is engaged in any other activity that endangers the national security of

the U.S.

4. Section 236A(a)(4) of the Act provides that the Attorney General may

delegate the authority provided under paragraph 3 only to the Deputy Attorney

General. The Deputy Attorney General may not delegate such authority.

E. Mass migrations and national security interests
page 14 of 365

1. In determining whether to release on bond undocumented aliens who arrive in

the U.S. by sea seeking to evade inspection, it is appropriate to consider

national security interests implicated by the encouragement of further

unlawful mass migrations and the release of undocumented alien migrants into

the U.S. without adequate screening. Matter of D-J-, 23 I&N Dec. 572 (A.G.

2003). The Attorney General stated that it is reasonable to assume that the

release on bond of mass migrants would come to the attention of others in

their country and encourage future surges in illegal migration. Id. Encouraging

such unlawful mass migrations is inconsistent with sound immigration policy

and important national security interests. Id. Surges in illegal migration injure

national security by diverting resources from counterterrorism and homeland

security responsibilities. Id.

2. Where the Government offers evidence from sources in the Executive Branch

with relevant expertise establishing that significant national security interests

are implicated, IJs and the Board shall consider such interests. Matter of D-J-,

23 I&N Dec. 572 (A.G. 2003).

3. Considering national security grounds applicable to a category of aliens in

denying an inadmitted alien’s request for release on bond does not violate any

due process right to an individualized determination in bond proceedings

under section 236(a) of the Act. Matter of D-J-, 23 I&N Dec. 572 (A.G.

2003).

4. NOTE: On November 13, 2002, the Commissioner designated for expedited

removal under 8 C.F.R. § 1235.3(b)(1)(ii) all aliens (other than crewmen,

stowaways, Cuban citizens or nationals, and aliens who arrive at U.S. portsof-entry) who arrive in the U.S. on or after November 13, 2002 by sea who are

not admitted or paroled and who have not been physically present in the U.S.

for 2 years immediately prior to the determination of inadmissibility by an

immigration officer. 8 C.F.R. § 1235.3(b)(2)(iii) provides that an alien whose

inadmissibility is being considered under the expedited removal procedures of

8 C.F.R. § 1235.3(b)(1)(ii) or who has been ordered removed pursuant to that

regulation shall be detained pending determination and removal, but may be

allowed parole by the immigration authorities. Therefore, such an alien is not

eligible for a bond redetermination by an IJ.

F. Aliens subject to expedited removal

1. 8 C.F.R. § 1235.3(b)(2)(iii) provides that an alien whose inadmissibility is

being considered under the expedited removal procedures of 8 C.F.R. §

1235.3(b)(1)(ii) or who has been ordered removed pursuant to that regulation

shall be detained pending determination and removal, but may be allowed

parole by the immigration authorities. Therefore, such an alien is not eligible

for a bond redetermination by an IJ.
page 15 of 365

G. All other, non-criminal, non-terrorist, aliens

1. Pending a decision on whether the alien is to be removed from the U.S., the

Attorney General may continue to detain the arrested alien, and may release

the alien on a bond of at least $1,500 or conditional parole but may not

provide the alien with work authorization unless the alien is a LPR or

otherwise would be provided such authorization. INA § 236(a). 

a. Note: An alien who is initially screened for expedited removal under

section 235(b)(1)(A) of the Act, as a member of a class of aliens

designated pursuant to the authority in section 235(b)(1)(A)(iii) of the

Act, but who is subsequently placed in removal proceedings under

section 240 of the Act, following a positive credible fear determination,

is eligible for a custody redetermination hearing before an IJ unless the

alien is a member of any of the listed classes of alien who are

specifically excluded from the custody jurisdiction of IJs pursuant to 8

C.F.R. § 1003.19(h)(2)(i). Matter of X-K-, 23 I&N Dec. 731 (BIA

2005).

2. The purpose of a bond in deportation proceedings is to insure that the

respondent will appear for the deportation hearing. But neither section 236(a)

of the Act nor the applicable regulations confer on an alien the right to release

on bond. Matter of D-J-, 23 I&N Dec. 572 (A.G. 2003).

a. In determining a respondent’s reliability as a bail risk and the amount of

bond to be required, these factors may properly be considered:

(1) respondent’s employment history and its stability;

(2) respondent’s length of residence in the community;

(3) respondent’s family ties in the U. S. and whether they are such that

they may entitle the respondent to reside permanently in the U. S.

at a future date;

(4) respondent’s record of nonappearance at court proceedings;

(5) respondent’s previous or pending criminal violations and the

seriousness of the charges;

(6) the effect such criminal violations may have upon eligibility for

relief from deportation;

(7) evidence of respondent’s disrespect for the law;

(8) evidence which adversely reflects upon respondent’s character;
page 16 of 365

(9) respondent’s previous immigration violations;

(10) respondent’s manner of entry into the United States.

b. The Board of Immigration Appeals’ decisions on bonds which discuss

the above are:

(1) Matter of Patel, 15 I&N Dec. 666 (BIA 1976) superseded by statute

as stated in Matter of Valdez-Valdez, 21 I&N Dec. 703 (BIA

1997);

(2) Matter of San Martin, 15 I&N Dec. 167 (BIA 1974);

(3) Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978);

(4) Matter of Shaw, 17 I&N Dec. 177 (BIA 1979);

(5) Matter of Andrade, 19 I&N Dec. 488 (BIA 1987).

c. The following factors may not be considered in redetermining an alien’s

custody status:

(1) The potential difficulties that the INS may face in executing an

order of deportation because of conditions in the alien’s country. 

Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991).

(2) The determination of bond in a deportation case is independent of

the bond proceedings in any criminal case in which the respondent

has been involved and it is inappropriate for the IJ to speculate as

to the possible rationale for a low bond set in a pending criminal

case and to find that the low criminal bond weighs in favor of a

larger bond in the deportation case. Matter of Shaw, 17 I&N Dec.

177 (BIA 1979).

(3) An alien’s early release from prison and transition to a parole status

do not necessarily reflect rehabilitation for one may receive an

early release for other reasons. Matter of Andrade, 19 I&N Dec.

488 (BIA 1987). Therefore, such facts do not carry significant

weight in determining whether the alien is a good bail risk for

immigration purposes. Id.

d. An alien subject to criminal proceedings for alleged terrorist activities in

the country to which the INS seeks to deport him is appropriately

ordered detained without bond as a poor bail risk. Matter of Khalifah,

21 I&N Dec. 107 (BIA 1995).
page 17 of 365

e. An IJ’s jurisdiction includes the authority to increase the amount of bond

initially set by the DD. Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA

1978).

f. Even though a respondent has had a bond redetermination hearing before

an IJ, if later there is a change of circumstances affecting his reliability

as a bail risk, the DD has authority to increase the amount of bond. 

Matter of Sugay, 17 I&N Dec. 637 (BIA 1981). (Of course, the new

bond amount is subject to redetermination by an IJ.)

H. Procedure in bond proceedings

1. The initial decision on custody is made by the DD or his delegate. 8 C.F.R. § 

1236.1(d)(1).

a. In order to make a proper custody determination, the INS must have

custody of the respondent. A respondent who is in the custody of a State

or agency other than the INS is not in the custody of the INS. Matter of

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

b. Even if INS has placed a detainer on a respondent held in the custody of

another agency, the detainer does not entitle the respondent to have a

bond set by the DD. Matter of Lehder, 15 I&N Dec. 159 (BIA 1975);

Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990). A detainer is merely

an administrative mechanism to insure that a person subject to

confinement will not be released until the party requesting the detainer

has an opportunity to act. Matter of Sanchez, 20 I&N Dec. 223 (BIA

1990).

2. Former 8 C.F.R. § 3.18(b) [now 8 C.F.R. § 1003.19(b)] and former 8 C.F.R. § 

242.2(d) [now 8 C.F.R. § 1236.1(d)(1)] provide authority for an IJ to

redetermine custody status only upon application by the respondent or his

representative. An IJ may not redetermine custody status on his own motion. 

Matter of P-C-M-, 20 I&N Dec. 432 (BIA 1991).

a. 8 C.F.R. § 1236.1(d)(1) provides authority to the IJ to review and modify

the conditions placed on the alien’s release from DHS custody. Matter of

Garcia-Garcia, 25 I&N Dec. 93 (BIA 2009). 

b. Where the respondent is still in custody, the respondent may file an

application for amelioration of the conditions under which he may be

released at any time. 8 C.F.R. § 1236.1(d)(1) (2011). Custody means

actual physical restraint or confinement within a given space and does

not include electronic monitoring or home confinement. Matter of

Aguilar-Aquino, 24 I&N Dec. 747, 752-53 (BIA 2009). Where the
page 18 of 365

respondent has been released from custody, the respondent must file an

application for amelioration of the terms of release within 7 days of

release. 8 C.F.R. § 1236.1(d)(1). If the application for amelioration

occurs after 7 days from release, the IJ lacks authority to redetermine

custody status. Aguilar-Aquino, 24 I&N Dec. at 753.

3. Former 8 C.F.R. § 242.2(d) [now 8 C.F.R. § 1236.1(d)(1)] provides that an IJ

only acquires jurisdiction over bond after the DD's initial determination of

bond under 8 C.F.R. § 242.2(c)(2). Therefore, a respondent who is in the

custody of a State or other agency other than INS is not subject to having a

bond set by the DD under 8 C.F.R. § 242.2(c)(2) or reviewed by an IJ under 8

C.F.R. § 242.2(d). Matter of Sanchez, 20 I&N Dec. 223 (BIA 1990).

a. Even if a respondent is in the actual physical custody of the INS, it is

arguable that an IJ does not acquire jurisdiction over bond until the DD

makes the initial bond determination under the regulations. The Board

found it unnecessary to determine in Matter of Sanchez if an IJ may

assume that a DD’s inaction in setting bond is the equivalent of setting

no bond. In such a situation, the respondent may be required to seek an

order from a Federal Judge requiring the DD to set bond.

4. 8 C.F.R. § 1236.1(c)(5) provides that an IJ may not exercise bond

redetermination authority with respect to:

a. A criminal alien subject to section 303(b)(3)(A)(ii) or (iii) of Div. C. of

Pub. L. 104-208, if the alien has been sentenced, including in the

aggregate, to at least 2 years imprisonment and the alien:

(1) Is described in section 237(a)(2)(D)(i) or (ii) of the Act [espionage

and sabotage] or has been convicted of a crime described in section

101(a)(43)(A), (C), (E)(i), (H), (I), (K)(iii) or (L) [select aggravated

felonies];

(2) Is described in section 237(a)(2)(A)(iv) of the Act [high speed

flight]; or

(3) Has escaped or attempted to escape from the lawful custody of a

local, State or Federal prison, agency or officer within the United

States.

5. Immigration judges do not have authority to redetermine the conditions of

custody imposed by DHS with respect to aliens who have not been issued and

served with a Notice to Appear (“NTA”) in relation to removal proceedings

pursuant to 8 C.F.R. § 1240. Matter of Werner, 25 I&N Dec. 45 (BIA 2009).

Therefore, an alien admitted to the U.S. pursuant to the Visa Waiver Program

who has not been served with an NTA pursuant to 8 C.F.R. § 1240 is not
page 19 of 365

entitled to a custody hearing before an IJ. Id. (acknowledging that Matter of

Gallardo, 21 I&N Dec. 210 (BIA 1996) has been superseded by regulation).

6. An IJ loses jurisdiction to redetermine bond when an order of removal

becomes administratively final. 8 C.F.R. § 1236.1(d).

7. Although aliens present in the U.S. without being admitted or paroled are

charged under the grounds of inadmissibility listed in section 212(a) of the

Act, they are not arriving aliens and may have their bond redetermined by an

IJ.

8. An IJ’s jurisdiction includes the authority to increase the amount of bond

initially set by the DD. Matter of Spiliopoulos, 16 I&N Dec. 561 (BIA 1978).

9. Even though a respondent has had a bond determination hearing before an IJ,

if later there is a change of circumstances affecting his reliability as a bail risk,

the DD has authority to increase the amount of bond. Matter of Sugay, 17

I&N Dec. 637 (BIA 1981). (Of course, the new bond amount is subject to

redetermination by an IJ.)

10. The background investigations and security checks requirement at 8 C.F.R. §

1003.47(g) does not apply to proceedings seeking the redetermination of

conditions of custody. However, in scheduling an initial custody

redetermination hearing, the IJ shall, to the extent practicable consistent with

expedited nature of such cases, take account of the brief initial period of time

needed for the Department of Homeland Security to conduct the automated

portions of its identity, law enforcement or security examinations or

investigations with respect to aliens detained in connection with immigration

proceedings. 8 C.F.R. § 1003.47(k).

I. Requests for additional or subsequent bond redeterminations

1. The Board has held that because the bond regulations do not specifically

address motions to reopen, bond proceedings are not subject to the technical

requirements of former 8 C.F.R. § 242.2 regarding motions to reopen. Matter

of Uluocha, 20 I&N Dec. 133 (BIA 1989). Bond proceedings are not really

“closed” as long as a respondent is subject to a bond. Id. Therefore, IJs may

further consider requests to modify bonds by detained aliens without a formal

motion to reopen. Id. Such requests should be considered on the merits. Id.

However, if there are no changed circumstances shown, the IJ may decline to

change the prior bond decision. Id. This decision implies that there is no limit

to the number of times a detained respondent may request a bond

redetermination hearing. Id.

2. Following this decision, many detained respondents submitted multiple

requests for bond redetermination hearings. This became burdensome and
page 20 of 365

clogged IJs’ dockets. In 1992, 8 C.F.R. § 3.19(e) [now 8 C.F.R. § 1003.19(e)]

was amended to read as follows: “After an initial bond redetermination, an

alien’s request for a subsequent bond redetermination shall be made in writing

and shall be considered only upon a showing that the alien’s circumstances

have changed materially since the prior bond redetermination.”

3. An IJ maintains continuing jurisdiction to entertain requests by an alien for

subsequent bond redeterminations even after the timely filing of an appeal

with the Board from a previous bond redetermination decision. Matter of

Valles, 21 I&N Dec. 769 (BIA 1997). If, after a bond appeal has been filed by

an alien, the IJ grants a request for a subsequent bond redetermination, the

appeal is rendered moot and the Board will promptly return the record to the

Immigration Court. Id.

J. Appeals of bond decisions

1. 8 C.F.R. § 1236.1(d)(3) provides that an appeal to the Board may be filed as

follows:

a. Within 30 days by either the alien or the Service from a decision of an IJ.

b. Within 10 days by the alien from a decision of a DD once the IJ has lost

jurisdiction, i.e. 7 days after posting bond or when an order of removal

becomes administratively final.

(1) The Board has jurisdiction over an appeal from a DD’s custody

determination that was made after the entry of a final order of

deportation or removal, regardless of whether the alien formally

initiated the review or the DD made the review sua sponte. Matter

of Saelee, 22 I&N Dec. 1258 (BIA 2000).

(2) An alien subject to a final order of deportation based on a

conviction for an aggravated felony, who is unable to be deported,

may be eligible for release from detention after the expiration of

the 90 day removal period provided in section 241(a)(3) of the Act.

INA § 241(a)(6). Matter of Saelee, 22 I&N Dec. 1258 (BIA

2000).

(3) However, where an alien seeking review of a DD’s post-final-order

custody determination failed to demonstrate by clear and

convincing evidence that the release would not pose a danger to the

community pursuant to 8 C.F.R. § 241.4(a) (1999), the DD’s

decision to continue detention was sustained. Matter of Saelee, 22

I&N Dec. 1258 (BIA 2000).

IV. Grounds of inadmissibility in removal proceedings
page 21 of 365

A. Health-related grounds - Section 212(a)(1)

1. For available waivers, see section 212(g) of the Act.

2. Communicable disease. Section 212(a)(1)(A)(i) of the Act provides that any

alien who is determined in accordance with regulations by the Secretary of

Health and Human Services (“HHS”) to have a communicable disease of

public health significance is inadmissible.

3. Vaccinations. Section 212(a)(1)(A)(ii) provides that any alien who seeks

admission as an immigrant, or who seeks adjustment of status, who has failed

to present documentation of having received vaccination against vaccinepreventable diseases, including those listed in the section is inadmissible.

4. Mental disorder.

a. Section 212(a)(1)(A)(iii)(I) of the Act provides that any alien who is

determined in accordance with regulations by the Secretary of HHS in

consultation with the Attorney General to have a physical or mental

disorder and a history of behavior associated with the disorder that has

posed or may pose a threat to the property, safety, or welfare of the alien

or others is inadmissible.

b. Section 212(a)(1)(A)(iii)(II) of the Act provides that any alien who is

determined in accordance with regulations by the Secretary of Health

and Human Services in consultation with the Attorney General to have

had in the past a physical or mental disorder and a history of behavior

associated with the disorder which behavior has posed a threat to the

property, safety, or welfare of the alien and which behavior is likely to

recur or to lead to other harmful behavior is inadmissible.

5. Drug abusers. Section 212(a)(1)(A)(iv) provides that any alien determined in

accordance with regulations by the Secretary of HHS to be a drug abuser or

addict is inadmissible.

B. Crime involving moral turpitude (“CIMT”)

1. Section 212(a)(2)(A)(i)(I) provides that any alien convicted of, or who admits

having committed, or admits committing acts which constitute the essential

elements of a crime involving moral turpitude (other than a purely political

offense or an attempt or conspiracy to commit such a crime) is inadmissible. 

Moral turpitude refers generally to conduct that is inherently base, vile or

depraved and contrary to the accepted rules of morality in general. Matter of

Franklin, 20 I&N Dec. 867 (BIA 1994), aff’d 72 F.3d 571 (8 Cir. 1995). th

Moral turpitude does not depend on felony or misdemeanor distinction. 
page 22 of 365

Matter of Short, 20 I&N Dec. 136 (BIA 1989). Nor does the seriousness of a

criminal offense or the severity of the sentence imposed determine whether a

crime involves moral turpitude. Matter of Serna, 20 I&N Dec. 579 (BIA

1992). See pages 49-53 below for discussion of CIMT as ground of

deportability and pages 240-247 below for discussion of defenses to charge of

CIMT.

2. HISTORY LESSON - Before 1990, excludability for a CIMT was covered in

section 212(a)(9) of the Act. In 1990, the Act was reorganized and that

subject came under section 212(a)(2)(A)(i)(I). In 1996, it stayed under that

section number. Many cases on this subject from before 1990 involve section

212(a)(9) as the ground of inadmissibility.

3. The concept of admitting the commission of a CIMT or acts which constitute

the essential elements of a CIMT (rather than actually being convicted of a

CIMT).

a. The concept of admitting the commission of a crime goes back to at least

the Immigration Act of 1917. The Board interpreted the phrase “admits

the commission of” an offense to include, in addition to the admission of

facts or specific acts, an admission of the legal conclusion that the alien

had committed a specific criminal offense.

b. In Matter of J-, 2 I&N Dec. 285 (BIA 1945), the Board set forth the

following rules to establish that an alien admits commission of a felony

or other crime or misdemeanor involving moral turpitude: 

(1) It must be clear that the conduct in question constitutes a crime or

misdemeanor under the law where it is alleged to have occurred.

(2) The alien must be advised in a clear manner of the essential

elements of the alleged crime or misdemeanor.

(3) The alien must clearly admit conduct constituting the essential

elements of the crime and that he committed the offense, i.e. he

must admit the legal conclusion that he is guilty of the crime.

(4) It must appear that the crime admitted actually involves moral

turpitude, although it is not required that the alien himself concede

the element of moral turpitude.

(5) The admissions must be free and voluntary.

c. The Immigration and Nationality Act, which became effective in 1952,

added to former section 212(a)(9) a provision that an alien would also be

excludable who admits committing acts which constitute the essential
page 23 of 365

elements of a CIMT. The provisions of former section 212(a)(9) were

held to be applicable to offenses committed before as well as after the

effective date of the Immigration and Nationality Act. Matter of R-R-, 6

I&N Dec. 55 (BIA 1953, 1954, A.G. 1955). The Attorney General

specifically stated that he did not decide whether the admission of the

acts must take place before or after the effective date of the Act.

d. In light of the amendment, the requirement that the alien must admit the

legal conclusion that he is in fact guilty of the specific crime was deleted

in Matter of E-V-, 5 I&N Dec. 194 (BIA 1953). That decision

specifically stated that the other requirements set forth in Matter of Jstill prevail.

e. The Board later held that to sustain a finding of inadmissibility under

former section 212(a)(9) as one who has admitted acts constituting the

essential elements of a CIMT, the alien must have been furnished with a

definition of such crime in understandable terms. Matter of G-M-, 7

I&N Dec. 40 (BIA 1955, A.G. 1956). In Matter of K-, 7 I&N Dec. 594

(BIA 1957), the Board stated that the rule concerning the furnishing of

an adequate definition is not a specific statutory requirement but has

evolved for the purpose of insuring a fair hearing and to preclude a later

claim of unwitting entrapment. 

f. In determining whether an alien has admitted acts which constitute the

essential elements of a CIMT, court decisions defining, explaining, or

interpreting a statute may be considered in addition to the statute itself to

determine if those acts constitute essential elements of the crime. Matter

of W-, 5 I&N Dec. 578 (BIA 1953).

g. The “admission” does not have to be made in the course of the

exclusion (now removal) hearing. It might be made in a sworn statement

given to INS officers or in a proceeding held in a different tribunal. In

cases involving a plea of guilty in a criminal proceeding, the INS sought

to use the plea of guilty as an “admission” of either the commission of a

CIMT or acts constituting the essential elements of a CIMT.

(1) The Board has held that a plea of guilty in a criminal prosecution

may be regarded as an “admission” within the meaning of the

immigration laws. Matter of K-, 9 I&N Dec. 143 (BIA 1959, A.G.

1961); Matter of P-, 4 I&N Dec. 373 (BIA 1951). However, where

a plea of guilty results in something less than a conviction, the

plea, without more, is not tantamount to an admission of

commission of the crime for immigration purposes. Matter of

Seda, 17 I&N Dec. 550 (BIA 1980) (treated under a first offender

statute), overruled on other grounds by Matter of Ozkok, 19 I&N

Dec. 546 (BIA 1988), superseded by statute as stated in Matter of
page 24 of 365

Devison-Charles, 22 I&N Dec. 1362 (BIA 2000); Matter of

Winter, 12 I&N Dec. 638 (BIA 1967, 1968) (no sentence imposed

and case placed “on file”).

(2) The Board also held that an alien is not excludable when he admits

committing acts which constitute the essential elements of a CIMT

if such admission relates to the same crime for which he was

previously convicted and for which he obtained a pardon. Matter

of E-V-, 5 I&N Dec. 194 (BIA 1953).

(3) Even in a case involving a foreign conviction (rather than an

admission of commission of a CIMT or acts constituting the

essential elements of a CIMT), the Board has held that an

adjudication of juvenile delinquency is not a conviction for a crime

in the U.S. and one so convicted may not be excludable unless it is

determined that the applicant was not dealt with as a juvenile by

the foreign court. Matter of Ramirez-Rivero, 18 I&N Dec. 135

(BIA 1981); Matter of De La Nues, 18 I&N Dec. 140 (BIA 1981). 

Therefore, in determining inadmissibility as an alien who admits

the commission of a CIMT or the commission of acts constituting

the essential elements of a CIMT, the age of the applicant at the

time he committed the acts should be considered.

h. In an exclusion proceeding where there was reason to believe, by the

applicant’s own admissions or otherwise, that there has been a

conviction (not merely an admission of commission of a crime or

admission of acts constituting the essential elements of a crime) and that

the underlying crime involved moral turpitude, the burden was on the

applicant for admission to establish that he was not inadmissible. Matter

of Doural, 18 I&N Dec. 37 (BIA 1981), modified on other grounds,

Matter of Gonzalez, 19 I&N Dec. 682 (BIA 1988); Matter of B-, 3 I&N

Dec. 1 (BIA 1947). A finding of excludability in such a case need not be

supported by a record of conviction; Matter of Doural, 18 I&N Dec. at

37. [A similar finding in a deportation (now removal) proceeding where

the Service bears the burden to establish both the conviction and that it is

for a CIMT might not be appropriate. See e.g., Matter of B-,3 I&N Dec.

1 (BIA 1947).]

4. Convicted of a crime involving moral turpitude. If the statute of conviction

contains some offenses which involve moral turpitude and other which do not,

the IJ examines select conviction documents to determine whether they

unequivocally establish the respondent was convicted of a crime involving

moral turpitude. Matter of Ajami, 22 I&N Dec. 949 (BIA 1999); Matter of

Short, 20 I&N Dec. 136 (BIA 1989).
page 25 of 365

5. Purely political offense exception. In order for an offense to qualify for the

“purely political offense” exception to the ground of inadmissibility under

INA section 212(a)(2)(A)(i)(I), based on an alien’s conviction for a CIMT, the

offense must be completely or totally “political.” Matter of O’Cealleagh, 23

I&N Dec. 976 (BIA 2006).

6. Petty offense exception

a. Section 212(a)(2)(A)(ii) of the Act provides that section

212(a)(2)(A)(i)(I) shall not apply to an alien who committed only one

crime if:

(1) the crime was committed when the alien was under 18 years of age

and the crime was committed (and the alien released from any

confinement) more than 5 years before both the visa application

and the application for admission [INA § 212(a)(2)(A)(ii)(I)]; or

(2) the maximum penalty possible for the crime did not exceed

imprisonment for one year and, if the alien was convicted of such

crime, the alien was not sentenced to 6 months or more (regardless

of the extent to which the sentence was ultimately executed) [INA

§ 212(a)(2)(A)(ii)(II)].

(a) The maximum sentence possible for an offense, not the

standard sentence under sentencing guidelines, determines

the alien’s eligibility for this exception. Matter of RuizLopez, 25 I&N Dec. 551 (BIA 2011).

b. An alien who has committed more than one petty offense is not

ineligible for the “petty offense” exception if only one crime is a CIMT. 

Matter of Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).

C. Controlled substance offenses

1. Section 212 (a)(2)(A)(i)(II) of the Act provides that any alien convicted of, or

who admits committing acts which constitute the essential elements of, a

violation of or a conspiracy to violate any law or regulation of a State, the

U.S., or a foreign country relating to a controlled substance as defined in

section 102 of the Controlled Substances Act (21 U.S.C. § 802) is

inadmissible.

2. History Lesson- Before 1990, excludability for a drug offense was covered in

part of section 212(a)(23) of the Act. In 1990, the Act was reorganized and

that subject came under section 212(a)(2)(A)(i)(II). In 1996, it stayed under

that section number. Many cases on this subject from before 1990 involve

former section 212(a)(23) as the ground of inadmissibility.
page 26 of 365

3. The concept of admitting the commission of a violation or of admitting the

commission of acts which constitute the essential elements of a violation was

not contained in former section 212(a)(23). It was added by the Immigration

Act of 1990.

4. Drug Paraphernalia - An alien may be rendered inadmissible under section

212(a)(2)(A)(i)(II) on the basis of a conviction for possession or use of drug

paraphernalia because such possession or use is related to a controlled

substance. Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009). See

also Luu-Le v. INS, 224 F.3d 911, 915 (9th Cir. 2000), Bermudez v. Holder,

586 F.3d 1167 (9th Cir. 2009). An alien who is inadmissible based on a drug

paraphernalia offense may qualify for a waiver of inadmissibility under

section 212(h) if the offense “relates to a single offense of simple possession

of 30 grams or less of marijuana.” Martinez-Espinoza, 25 I&N Dec. at 123-

26. 

D. Multiple criminal convictions

1. Section 212(a)(2)(B) of the Act provides that any alien convicted of 2 or more

offenses (other than purely political offenses), regardless of whether the

conviction was in a single trial or whether the offenses arose from a single

scheme of misconduct and regardless of whether the offenses involved moral

turpitude, for which the aggregate sentences to confinement actually imposed

were 5 years or more is inadmissible.

2. HISTORY LESSON - Before 1990, excludability for 2 or more offenses was

covered in section 212(a)(10) of the Act. In 1990, the Act was reorganized

and that subject came under section 212(a)(2)(A)(i)(I). In 1996, it stayed

under that section number. Cases on this subject from before 1990 involve

section 212(a)(10) as the ground of inadmissibility.

3. Under former section 212(a)(10) of the Act, a sentence was “actually

imposed” if a criminal court suspended the execution of a sentence, but no

sentence was “actually imposed” where the imposition of sentence was

suspended. Matter of Esposito, 21 I&N Dec. 1 (BIA 1995). However, section

101(a)(48)(B), which was added to the Act by the IIRIRA, now provides “Any

reference to a term of imprisonment of 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.” Thus, the relevant inquiry

is the term to which the alien was sentenced by the trial court, regardless

whether the imposition or execution of the sentence was suspended. Matter of

S-S-, 21 I&N Dec. 900 (BIA 1997).
page 27 of 365

4. In interpreting former section 212(a)(10), the Board held that if an alien has

been convicted of 2 counts of an offense and sentenced to serve 2 concurrent

3-year terms, the aggregate sentence is only 3 years. Matter of Fernandez, 14

I&N Dec. 24 (BIA 1972). Apparently the alien must be sentenced to

consecutive terms in order for the terms to be combined in determining an

aggregate sentence. This appears to still be good law because Fernandez was

cited with approval in Matter of Aldabesheh, 22 I&N Dec. 983 (BIA 1999),

which dealt with the “aggregate sentence” of an alien convicted of two or

more aggravated felonies and sentenced to concurrent sentences of

imprisonment. Because the aggregate sentence was less than 5 years, the

respondent was eligible for withholding of removal.

E. Trafficking in controlled substances

1. Section 212(a)(2)(C) provides that any alien who the consular or immigration

officer knows or has reason to believe is or has been an illicit trafficker in any

controlled substance or has been a knowing assister, abettor, conspirator, or

colluder with others in the illicit trafficking in controlled substances is

inadmissible.

2. HISTORY LESSON - Before 1990, excludability for being a drug trafficker

was covered in part of section 212(a)(23) of the Act. In 1990, the Act was

reorganized and being a drug trafficker came under section 212(a)(2)(C). In

1996, it stayed under that section number. Many cases on this subject from

before 1990 involve former section 212(a)(23) as the ground of

inadmissibility.

3. The statute does not require a conviction to establish inadmissibility under this

section. Matter of Rico, 16 I&N Dec. 181, 184 (BIA 1977).

a. The Eleventh Circuit held that an alien’s vacated guilty plea along with

hearsay statements in police reports did not amount to reason to believe

that alien trafficked in controlled substances and, therefore, the alien was

not removable under section 212(a)(2)(C). Garces v. Att’y Gen., 611

F.3d 1337 (11th Cir. 2010). 

4. In cases involving former section 212(a)(23), the Board held that a single act

will constitute a “trafficking” and it is not necessary to show a pattern or

continuous trade in drugs. Matter of Favela, 16 I&N Dec. 753 (BIA 1979);

Matter of Rico, 16 I&N Dec. 181 (BIA 1977); Matter of P-, 5 I&N Dec. 190

(BIA 1953). However, Matter of Rico and Matter of Favela do imply that it is

necessary to show an act of more than simple possession such as sale of drugs

or possession of such a large quantity of drugs that it could not be intended for

personal use.
page 28 of 365

5. An alien who knowingly and consciously acts as a conduit in the transfer of

marijuana between a dealer and the customers of the dealer was excludable

under former section 212(a)(23) as an "illicit trafficker" in drugs, even though

he derived no personal gain or profit from the transaction. Matter of R-H-, 7

I&N Dec. 675 (BIA 1958) (finding illicit trafficking where the alien on 3

occasions held marijuana cigarettes for a dealer and distributed them to

customers who either had already paid the dealer in advance or left payment

with the alien for later collection by the dealer).

6. Applicants who, at the time of arrival, were in possession of 6 marijuana

cigarettes for personal use were not excludable under former section

212(a)(23) of the Act because there had been no conviction for possession of

marijuana and their possession of a small quantity for personal use did not

constitute “trafficking.” Matter of McDonald and Brewster, 15 I&N Dec. 203

(BIA 1975).

F. Prostitution

1. Section 212(a)(2)(D)(i) of the Act provides that any alien coming to the U.S.

solely, principally, or incidentally to engage in prostitution or who has

engaged in prostitution within 10 years of the application for a visa,

admission, or adjustment of status is inadmissible.

G. Procurers & importers of prostitutes

1. Section 212(a)(2)(D)(ii) of the Act provides that the following aliens are

inadmissible: Those who directly or indirectly procure or attempt to procure

prostitutes or persons for the purpose of prostitution, or who receive, in whole

or in part, the proceeds of prostitution.

a. The Board has ruled that a conviction under California Penal Code

§ 647(b) does not render an alien inadmissible under

section 212(a)(2)(D)(ii) for “procur[ing] . . . prostitutes or persons for

the purpose of prostitution.” Matter of Gonzalez-Zoquiapan, 24 I&N

Dec. 549 (BIA 2008). The California statute punishes anyone “[w]ho

solicits or who agrees to engage in or who engages in any act of

prostitution,” and it states that “‘prostitution’ includes any lewd act

between persons for money or other consideration.” Id. at 551. The

Board ruled that “the term ‘procure’ [in INA section 212(a)(2)(D)(ii)]

does not extend to an act of solicitation of a prostitute on one’s own

behalf.” Id. at 551-52. The Board further ruled that, even if INA

section 212(a)(2)(D)(ii) encompasses soliciting a prostitute on one’s own

behalf, California Penal Code section 647(b) still falls outside that

statute. Id. at 553. For this holding, the Board cited to 22 C.F.R.

§ 40.24(b), which states that, for purposes of INA section

212(a)(2)(D)(ii), “‘prostitution’ means engaging in promiscuous sexual
page 29 of 365

intercourse for hire. A finding that an alien has ‘engaged’ in prostitution

must be based on elements of continuity and regularity.” Id. The Board

explained that the California statute is broader than INA section

212(a)(2)(D)(ii) because: (1) it covers “lewd act[s]” rather than simply

“sexual intercourse;” and (2) it does not require “a pattern of behavior or

deliberate course of conduct.” Id.

2. Those who have within 10 years of the application for a visa, admission, or

adjustment of status procured, attempted to procure, or to import prostitutes or

persons for the purpose of prostitution.

3. Those who receive or have received within 10 years of the application for a

visa, admission, or adjustment of status, in whole or in part, the proceeds of

prostitution. 

H. Commercialized vice

1. Section 212(a)(2)(D)(iii) of the Act provides that any alien coming to the U.S.

to engage in any other unlawful commercialized vice, whether or not related to

prostitution is inadmissible.

I. Aliens who asserted immunity from prosecution - Section 212(a)(2)(E)

1. Any alien is inadmissible who

a. has committed in the U.S. at any time a serious criminal offense as

defined in section 101(h) of the Act and

b. for whom immunity from criminal jurisdiction was exercised with

respect to that offense, and

c. who departed from the U.S. as a consequence of the offense and the

exercise of immunity, and

d. who has not subsequently submitted fully to the jurisdiction of the court

in the U.S. which has jurisdiction with respect to the offense.

2. The term “serious criminal offense”, defined in section 101(h) of the Act

means:

a. Any felony;

b. Any crime of violence, as defined in 18 U.S.C. § 16;

(1) 18 U.S.C. § 16 defines a "crime of violence" as:
page 30 of 365

(a) An offense that has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another, or

(b) any other offense that is a felony and that, by its nature,

involves a substantial risk that physical force against the

person or property of another may be used in the course of

committing the offense.

c. Any crime of reckless driving or driving while intoxicated or under the

influence of prohibited substances if the crime involves personal injury

to another.

3. A waiver is available at section 212(h) of the Act.

J. Espionage or sabotage

1. Section 212(a)(3)(A)(i) of the Act provides that any alien is inadmissible who

a consular officer or the Attorney General knows, or has reasonable ground to

believe, seeks to engage solely, principally or incidentally in:

a. any activity to violate any law of the U.S. relating to espionage or

sabotage, or

b. to violate or evade any law prohibiting the export from the U.S. of

goods, technology, or sensitive information.

2. Former section 241(a)(4)(A)(i) of the Act, which provided for the

deportability of any alien who after entry has engaged in “any activity to

violate any law of the United States relating to espionage,” does not require

evidence that the alien was either engaged in an act of espionage or was

convicted of violating a law relating to espionage. Matter of Luis, 22 I&N

Dec. 747 (BIA 1999).

3. An alien who has knowledge of, or has received instruction in, the espionage

or counter-espionage service or tactics of a foreign government in violation of

50 U.S.C. § 851 (1994), is deportable under former section 241(a)(4)(A)(i) of

the Act. Matter of Luis, 22 I&N Dec. 747 (BIA 1999).

K. Any unlawful activity

1. Section 212(a)(3)(A)(ii) of the Act provides that any alien who a consular

officer or the Attorney General knows, or has reasonable ground to believe,

seeks to engage solely, principally or incidentally in any unlawful activity is

inadmissible.
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L. Overthrow of the Government of the U.S.

1. Section 212(a)(3)(A)(iii) of the Act provides that any alien who a consular

officer or the Attorney General knows, or has reasonable ground to believe,

seeks to engage solely, principally or incidentally in any activity a purpose of

which is the opposition to, or overthrow of the Government of the U.S. by

force, violence, or other unlawful means is inadmissible.

M. Terrorist activities

1. The statutory language of section 212(a)(3)(B) does not allow a “totality of the

circumstances” test to be employed in determining whether an organization is

engaged in a terrorist activity, so factors such as an organization’s purposes or

goals and the nature of the regime that the organization opposes may not be

considered. Matter of S-K-, 23 I&N Dec. 936 (BIA 2006). The definition of

“terrorist activity” under the INA does not provide an exception for armed

resistance against military targets that is permitted under the international law

of armed conflict. Khan v. Holder, 584 F.3d 773 (9th Cir. 2009). Section

212(a)(3)(B)(i) of the Act [amended by the REAL ID Act of 2005] provides

that any alien is inadmissible who:

a. has engaged in a terrorist activity [INA § 212(a)(3)(B)(i)(I)];

b. a consular officer or the Attorney General or Secretary of Homeland

Security knows, or has reasonable ground to believe, is engaged in or

likely to engage after entry in any terrorist activity [INA §

212(a)(3)(B)(i)(II)];

c. has, under circumstances indicating an intention to cause death or

serious bodily harm, incited terrorist activity [INA §

212(a)(3)(B)(i)(III)];

d. is a representative of a terrorist organization or a political, social or other

group that endorses or espouses terrorist activity [INA §

212(a)(3)(B)(i)(IV)];

e. is a member of a terrorist organization (unless the alien can

demonstrated by clear and convincing evidence that he did not know and

should not reasonably have known that the organization was a terrorist

organization) [INA §§ 212(a)(3)(B)(i)(V) & (VI)];

f. endorses or espouses a terrorist activity or persecutes others to endorse

or espouse a terrorist activity or support a terrorist organization [INA §

212(a)(3)(B)(i)(VII)];
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g. has received military-type training (as defined in 18 USC § 2339D(c)(1))

from or on behalf of any organization that, at the time the training was

received, was a terrorist organization [INA § 212(a)(3)(B)(i)(VIII)]; or

h. is the spouse or child of an alien found inadmissible under this

subparagraph, if the activity causing the alien to be found inadmissible

occurred within the last 5 years [INA § 212(a)(3)(B)(i)(IX)].

2. The term “terrorist activity” is defined in section 212(a)(3)(B)(iii) of the Act

as any activity which is unlawful under the laws of the place where it is

committed (or which, if committed in the U.S., would be unlawful under the

laws of the U.S. or any State) and which involves any of the following:

a. The highjacking or sabotage of any conveyance (including an aircraft,

vessel, or vehicle) [INA § 212(a)(3)(B)(iii)(I)];

b. The seizing or detaining, and threatening to kill, injure, or continue to

detain, another individual in order to compel a third person (including a

governmental organization) to do or abstain from doing any act as an

explicit or implicit condition for the release of the individual seized or

detained [INA § 212(a)(3)(B)(iii)(II)];

c. A violent attack upon an internationally protected person (as defined in

18 U.S.C. § 1116(b)(4)) or upon the liberty of such a person [INA §

212(a)(3)(B)(iii)(III)];

d. An assassination [INA § 212(a)(3)(B)(iii)(IV)];

e. The use of any (a) biological agent, chemical agent, or nuclear weapon

or device, or (b) explosive or firearm (other than for mere personal

monetary gain), with intent to endanger, directly or indirectly, the safety

of one or more individuals or to cause substantial damage to property

[INA § 212(a)(3)(B)(iii)(V)];

f. A threat, attempt, or conspiracy to do any of the foregoing [INA

§ 212(a)(3)(B)(iii)(VI)].

3. The term “engage in terrorist activity” is defined in section 212(a)(3)(B)(iv) of

the Act and means, in an individual capacity or as a member of an

organization

a. to commit or to incite to commit, under circumstances indicating an

intention to cause death or serious bodily injury, a terrorist activity [INA

§ 212(a)(3)(B)(iv)(I)];

b. to prepare or plan a terrorist activity [INA § 212(a)(3)(B)(iv)(II)];
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c. to gather information on potential targets for a terrorist activity [INA §

212(a)(3)(B)(iv)(III)];

d. to solicit funds or other things of value for a terrorist activity or a

terrorist organization (unless the solicitor can demonstrate by clear and

convincing evidence that he did not know and should not reasonable

have known, that the organization was a terrorist organization) [INA §

212(a)(3)(B)(iv)(IV)];

e. to solicit any individual to engage in conduct otherwise described in this

subsection, for membership in a terrorist organization (unless the

solicitor can demonstrate by clear and convincing evidence that he did

not know and should not reasonable have known, that the organization

was a terrorist organization) [INA § 212(a)(3)(B)(iv)(V)];

f. to commit an act that the actor knows or reasonable should know,

affords material support, including a safe house, transportation,

communications, funds, transfer of funds or other material financial

benefit, false documentation or identifications, weapons (including

chemical, biological, or radiological weapons), explosives or training for

(1) the commission of a terrorist activity, (2) to any individual who the

actors knows or reasonably should know has committed or plans to

commit a terrorist activity, or (3) to a terrorist organization (unless the

actor can demonstrate by clear and convincing evidence that he did not

know and should not reasonable have known, that the organization was a

terrorist organization) [INA § 212(a)(3)(B)(iv)(VI)]. Neither an alien’s

intent in making a donation to a terrorist organization nor the intended

use of the donation by the recipient is considered in assessing whether

the alien provided “material support” to a terrorist organization under

section 212(a)(3)(B)(iv)VI). Matter of S-K-, 23 I&N Dec. 936 (BIA

2006).

(1) Effective February 20, 2007, the Secretary of Homeland Security

made a determination pursuant to his discretionary authority under

section 212(d)(3)(B)(I) that section 212(a)(3)(B)(iv)(VI) shall not

apply with respect to material support provided to the Chin

National Front/Chin National Army of Burma by an alien who

satisfactorily demonstrates that he or she: (a) is seeking a benefit or

protection under the Act and has been determined to be otherwise

eligible for the benefit or protection; (b) has undergone and passed

relevant background and security checks; (c) has fully disclosed, in

all relevant applications and interviews with U.S. Government

representatives and agents, the nature and circumstances of each

provision of such material support; and (d) poses no danger to the

safety and security of the U.S. Notice of Determination, 72 Fed.
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Reg. 9957-01 (Mar. 6, 2007). Subsequently, the Attorney General

remanded Matter of S-K- to the Board for consideration of the

effect of the Secretary’s determination. Matter of S-K-, 24 I&N

Dec. 289 (A.G. 2007). The Board determined that the Secretary’s

determination made the respondent eligible for asylum, and granted

relief. Matter of S-K-, 24 I&N Dec. 475 (BIA 2008). The

Attorney General’s remand does not affect the precedential nature

of the Board’s conclusions in the first Matter of S-K-. Id. 

(2) Also in 2007, the Secretary of the Department of Homeland

Security exercised his authority to waive the material support

inadmissibility bar for certain aliens if the material support was

provided under duress to an undesignated terrorist organization and

the totality of the circumstances justified the favorable exercise of

discretion. Notice of Determination, 72 Fed. Reg. 9958-01 (Mar.

6, 2007). Shortly after the first exercise of discretion, the Secretary

authorized the U.S. Citizenship and Immigration Services

(“USCIS”) to consider the duress exemption in cases involving

material support for the Revolutionary Armed Forces of Colombia

(“FARC”) and the National Liberation Army of Colombia

(“ELN”). See “Processing the Discretionary Exemption to the

Inadmissibility Ground for Providing Material Support to the

Revolutionary Armed Forces of Colombia (FARC)” (September 6,

2007), USCIS; “Authorization to Process Cases Involving the

Provision of Material Support to the ELN” (December 18, 2007),

Department of Homeland Security Authorization Document. In

addition, section 691(b) of the Consolidated Appropriations Act

(“CAA”) of 2008 named certain groups that were not to be

considered terrorist organizations based on activities prior to the

CAA’s enactment on December 26, 2007. Pub. L. 110-161, 121

Stat. 1844. Subsequently, the Secretary exercised his authority to

state that most of the terrorism-related inadmissibility grounds

would not apply with respect to the 10 groups named in section

691(b) of the CAA, if certain conditions were met.

(3) On October 23, 2008, following interagency meetings, the

Department of Homeland Security issued a Fact Sheet announcing

its procedure for handling cases that may be considered for an

exemption afforded by section 212(d)(3)(B), in which there is an

administratively final order of removal. Fact Sheet, Department of

Homeland Security Implements Exemption Authority for Certain

Terrorist-Related Inadmissibility Grounds for Cases with

Administratively Final Orders of Removal (Oct. 23, 2008). 

Previously, USCIS had been adjudicating the available exemptions

for cases not in removal proceedings. Under the new procedures,

certain cases involving aliens in removal proceedings can be
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referred to USCIS, if the respondent was found ineligible for relief

or a benefit solely because of a terrorism bar for which the

Secretary has exercised his exemption authority. If USCIS grants

the exemption, the case can be reopened and relief granted.

4. The term “representative” is defined at section 212(a)(3)(B)(v) of the Act as

an officer, official, or spokesman of an organization and any person who

directs, counsels, commands or induces an organization or its members to

engage in terrorist activity.

5. The term “terrorist organization” is defined at section 212(a)(3)(B)(vi) of the

Act as an organization

a. designated under section 219 of the Act;

b. otherwise designated, upon publication in the Federal Register, by the

Secretary of State in consultation with or upon the request of the

Attorney General or the Secretary of Homeland Security, as a terrorist

organization, after finding the organization engages in terrorist activity

[INA § 212(a)(3)(B)(vi)(II)];

c. that is a group of two or more individuals, whether organized or not,

which engages in, or has a subgroup which engages in, terrorist activity

[INA § 212(a)(3)(B)(vi)(III)].

N. Adverse effects on foreign policy

1. Section 212(a)(3)(C)(i) of the Act provides that any alien whose entry or

proposed activities in the U.S. the Secretary of State has reasonable ground to

believe would have potentially serious adverse foreign policy consequences

for the U.S. is inadmissible.

2. Exception for officials. Section 212(a)(3)(C)(ii) of the Act provides that an

alien who is an official of a foreign government or a purported government, or

who is a candidate for election to a foreign government office during the

period immediately preceding the election for that office, shall not be

excludable or subject to restrictions or conditions on entry into the U.S. solely

because of the alien’s past, current, or expected beliefs, statements, or

associations, if such beliefs, statements, or associations would be lawful

within the U.S.

3. Exception for other aliens. Section 212(a)(3)(C)(iii) of the Act provides that

an alien, other than an official described above, shall not be excludable or

subject to restrictions or conditions on entry into the U.S. because of the

alien’s past, current, or expected beliefs, statements, or associations, if such

beliefs, statements, or associations would be lawful within the U.S., unless the
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Secretary of State personally determines that the alien’s admission would

compromise a compelling U.S. foreign policy interest.

O. Communist or totalitarian party membership

1. Section 212(a)(3)(D)(i) of the Act provides that any immigrant who is or has

been a member of or affiliated with the Communist Party or any other

totalitarian party, or subdivision or affiliate thereof, whether foreign or

domestic is inadmissible.

2. Since section 212(a)(3)(D)(i) applies only to immigrants, aliens seeking

admission as nonimmigrants are not rendered inadmissible by party

membership.

3. Exception for involuntary membership. Section 212(a)(3)(D)(ii) of the Act

provides that section 212(a)(3)(D)(i) shall not apply to an alien because of

membership or affiliation if the alien establishes to the satisfaction of the

consular officer when applying for a visa (or to the satisfaction of the Attorney

General when applying for admission) that 

a. the membership or affiliation is or was involuntary, or

b. is or was solely when under 16 years of age, by operation of law, or for

purposes of obtaining employment, food rations, or other essentials of

living and whether necessary for such purposes.

4. Exception for past membership. Section 212(a)(3)(D)(iii) of the Act provides

that section 212(a)(3)(D)(i) shall not apply to an alien because of membership

or affiliation if the alien establishes to the satisfaction of the consular officer

when applying for a visa (or to the satisfaction of the Attorney General when

applying for admission) that the membership or affiliation terminated

a. at least 2 years before the date of such application, or

b. 5 years before the date of such application, in the case of an alien whose

membership or affiliation was with the party controlling the government

of a foreign state that is a totalitarian dictatorship as of such date, and

c. the alien is not a threat to the security of the U.S.

5. Exception for certain close family members.

a. Although the statute refers to this as an “exception”, it is actually a

waiver since it involves the exercise of discretion.
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b. Section 212(a)(3)(D)(iv) of the Act provides that the Attorney General

may, in the Attorney General’s discretion, waive the application of

section 212(a)(3)(D)(i) in the case of an immigrant who is the parent,

spouse, son, daughter, brother, or sister of a citizen of the U.S. or a

spouse, son, or daughter of an alien lawfully admitted for permanent

residence for humanitarian purposes, to assure family unity, or when it is

otherwise in the public interest if the immigrant is not a threat to the

security of the U.S.

P. Nazi persecution

1. Section 212(a)(3)(E)(i) of the Act provides that any alien who participated in

the persecution of others in connection with the Nazi government of Germany

from 1933 to 1945 is inadmissible.

Q. Genocide or Acts of Torture or Extrajudicial Killing

1. Section 212(a)(3)(E)(ii) of the Act provides that any alien who has engaged in

genocide is inadmissible. Section 212(a)(3)(E)(iii) of the Act provides that

any alien who has committed, ordered, incited, assisted, or otherwise

participated in the commission of torture or extrajudicial killing is

inadmissible.

R. Public Charge

1. Section 212(a)(4) of the Act provides that any alien who in the opinion of the

consular officer at the time of application for a visa or the Attorney General at

the time of application for admission or adjustment of status, is likely to

become a public charge is inadmissible.

2. Factors to be taken into account.

a. Section 212(a)(4)(B)(i) of the Act provides that in determining

admissibility, the consular officer or Attorney General shall at a

minimum consider the alien’s 

(1) age;

(2) health;

(3) family status;

(4) assets, resources, and financial status; and

(5) education and skills.
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b. Section 212(a)(4)(B)(ii) of the Act provides that, in addition to the

factors listed above, the consular officer or Attorney General may also

consider any affidavit of support under section 213A.

3. Section 212(a)(4)(C) of the Act provides that any alien who seeks admission

or adjustment of status under a visa number issued under section 201(b)(2) or

203(a) is inadmissible under section 212(4) unless the alien has obtained

status as a spouse or child of a U.S. citizen pursuant to clause (ii), (iii), or (iv)

of section 204(a)(1)(A), or classification pursuant to clause (ii) or (iii) of

section 204(a)(1)(B), or the person petitioning for the alien’s admission

(including any additional sponsor required under section 213A(f)) has

executed an affidavit of support described in section 213A with respect to

such alien.

4. Section 212(a)(4)(D) provides that any alien who seeks admission or

adjustment of status under a visa number issued under section 203(b) by virtue

of a classification petition filed by a relative of the alien (or by an entity in

which such relative has a significant ownership interest) is inadmissible unless

such relative has executed an affidavit of support described in section 213A

with respect to such alien.

S. No labor certification

1. Section 212(a)(5)(A) of the Act provides that any alien seeking to enter the

U.S. to perform labor who has no labor certification is inadmissible.

T. Foreign medical graduates

1. Section 212(a)(5)(B) of the Act provides that certain foreign medical

graduates who have not passed the NBME exam and who are not competent in

oral and written English are inadmissible.

U. Uncertified foreign health-care workers

1. Section 212(a)(5)(C) of the Act provides that any alien is inadmissible who

seeks to enter the U.S. as a health-care worker, other than a physician, who

does not present to the consular officer, or Attorney General if seeking

adjustment of status, a certificate from the Commission on Graduates of

Foreign Nursing Schools or its equivalent.

V. Illegal entrants and immigration violators

1. Not admitted or paroled. Section 212(a)(6)(A)(i) of the Act provides that an

alien present in the U.S. without being admitted or paroled, or who arrives in

the U.S. at any time or place other than as designated by the Attorney General

is inadmissible.
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a. Exception for certain battered women and children. Section

212(a)(6)(A)(ii) of the Act provides that section 212(a)(6)(A)(i) shall not

apply to an alien who demonstrates that:

(1) the alien qualifies for immigrant status under sections

204(a)(1)(A)(iii), (A)(iv), (B)(ii), or (B)(iii) [VAWA selfpetitioner] and

(2) the alien has been battered or subjected to extreme cruelty by a

spouse or parent, or by a member of the spouse’s or parent's family

residing in the same household as the alien and the spouse or

parent consented or acquiesced to such battery or cruelty, or

(3) the alien’s child has been battered or subjected to extreme cruelty

by a spouse or parent of the alien (without the active participation

of the alien in the battery or cruelty) or by a member of the

spouse’s or parent’s family residing in the same household as the

alien when the spouse or parent consented to or acquiesced in such

battery or cruelty and the alien did not actively participate in such

battery or cruelty and

(4) there was a substantial connection between the battery or cruelty

and the alien’s unlawful entry into the U.S.

2. Failure to attend hearing. Section 212(a)(6)(B) of the Act provides that any

alien who without reasonable cause fails or refuses to attend or remain in

attendance at a proceeding to determine the alien’s inadmissibility or

deportability and who seeks admission to the U.S. within 5 years of such

alien’s subsequent departure or removal is inadmissible.

3. Misrepresentation

a. Fraud or misrepresentation of a material fact. Section 212(a)(6)(C)(i) of

the Act provides that any alien who seeks to procure, has sought to

procure, or has procured a visa, other documentation, entry into the U.S.,

or other benefit under the Act by fraud or willfully misrepresenting a

material fact is inadmissible.

(1) A waiver for this ground of inadmissibility is available under

section 212(i).

(2) A concealment or misrepresentation is material if it had the natural

tendency to influence the adjudicator. Matter of D-R-, 25 I&N

Dec. 445, 450 (BIA 2011) (quoting Kungys v. United States, 485

U.S. 759, 772 (1988)). It is not necessary to establish that the
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misrepresentation actually influenced the adjudicator or that but for

the misrepresentation, the alien would have been denied the benefit

he sought. Id.

b. False claim to U.S. citizenship. Section 212(a)(6)(C)(ii)(I) provides that

any alien who falsely represents or has falsely represented himself or

herself to be a citizen of the U.S. for any purpose or benefit under the

Act or any other Federal or State law is inadmissible. Aliens who

reasonably believed that they were citizens may be excepted under

section 212(a)(6)(C)(ii)(II).

(1) A waiver for this ground of inadmissibility is available under

section 212(i). INA § 212(a)(6)(C)(iii).

(2) An alien who willfully and knowingly makes a false

misrepresentation of birth in the United States on a passport

application has falsely represented herself to be a U.S. citizen.

Matter of Barcenas, 25 I&N Dec. 40 (BIA 2009).

4. Stowaways. Section 212(a)(6)(D) of the Act provides that any alien who is a

stowaway is inadmissible. The term is defined at section 101(a)(49) of the

Act.

5. Alien smugglers. Section 212(a)(6)(E)(i) of the Act provides that any alien

who at any time knowingly has encouraged, assisted, abetted, or aided, any

other alien to enter or try to enter the U.S. in violation of law is inadmissible.

a. Section 212(a)(6)(E)(i) shall not apply in the case of an alien who is an

eligible immigrant as defined in section 301(b)(1) of the Immigration

Act of 1990, was physically present in the U.S. on May 5, 1988, and is

seeking admission as an immediate relative or under section 203(a)(2)

(including under section 112 of the Immigration Act of 1990) or benefits

under section 301(a) of the immigration Act of 1990 if the alien, before

May 5, 1988, has encouraged, induced, assisted, abetted, or aided only

the alien’s spouse, parent, son, or daughter (and no other individual) to

enter the U.S. in violation of law. INA § 212(a)(6)(E)(ii).

(1) Section 301(b)(1) of the Immigration Act of 1990 defines the term

“eligible immigrant” as a qualified immigrant who is the spouse or

unmarried child of a legalized alien.

b. A waiver of inadmissiblity may also be available under section

212(d)(11). INA § 212(a)(6)(E)(iii).

6. Violators of section 274C. Section 212(a)(6)(F) of the Act provides that any

alien who is the subject of a final order for violation of section 274C of the
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Act is inadmissible. Section 274C provides for a hearing before an

administrative law judge, civil fines of between $250 and $2,000 for each

document, and makes unlawful the following: to forge, attempt to use,

possess, obtain, or falsely make any document for the purpose of satisfying a

requirement of the Act; to use, attempt to use, possess, obtain, accept, or

receive or to provide any forged, counterfeit, altered, or falsely made

document in order to satisfy any requirement of the Act; to use or attempt to

use or to provide or attempt to provide any document lawfully issued to a

person other than the possessor for the purpose of satisfying a requirement of

the Act; to accept or receive or to provide any document lawfully issued to a

person other than the possessor for the purpose of complying with section

274A(b).

a. A waiver may be available under section 212(d)(12). INA §

212(a)(6)(F)(ii).

7. Student visa abusers. Section 212(a)(6)(G) provides that an alien who obtains

the status of a nonimmigrant under section 101(a)(15)(F)(i) and who violates a

term or condition of such status under section 214(l) is inadmissible until the

alien has been outside the U.S. for a continuous period of 5 years after the date

of the violation. This section should likely refer to current section 214(m)

rather than section 214(l) as section 214(m) refers to foreign students. See

Pub. L. 106-386, Victims of Trafficking and Violence Protection Act of 2000,

§ 107(e)(2)(a).

W. Not in possession of valid, unexpired documents

1. Section 212(a)(7)(A)(i) of the Act provides that any immigrant who, at the

time of the application for admission, is not in possession of a valid unexpired

immigrant visa, reentry permit, border crossing card, or other valid entry

document required by the Act and a valid unexpired passport or other suitable

travel document or document of identity and nationality if required by the

regulations under section 211(a), or whose visa has been issued without

compliance with the provisions of section 203 (the preferences by which

immigrant visas are issued) is inadmissible.

2. A waiver may be available under section 212(k). INA § 212(a)(7)(A)(ii).

X. Not in possession of valid entry documents, such as visa

1. Section 212(a)(7)(B)(i)(I) provides that any nonimmigrant who is not in

possession of a passport valid for a minimum of 6 months from the date of the

expiration of the initial period of the alien’s admission or contemplated initial

period of stay authorizing the alien to return to the country from which the

alien came or to proceed to and enter some other country during such period is

inadmissible.
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2. Section 212(a)(7)(B)(i)(II) provides that any nonimmigrant not in possession

of a valid nonimmigrant visa or a border crossing identification card is

inadmissible.

3. Waivers available

a. A waiver of both of the above is available under section 212(d)(4) of the

Act. INA § 212(a)(7)(B)(ii).

b. A waiver for certain nonimmigrant visitors to Guam is also available

under section 212(l) of the Act. INA § 212(a)(7)(B)(iii).

c. A general waiver is also available under the Visa Waiver Pilot Program

discussed in section 217 of the Act. INA § 212(a)(7)(B)(iv).

Y. Immigrants who are permanently ineligible for citizenship - Section 212(a)(8)(A)

1. The term “ineligible to citizenship” is defined at section 101(a)(19) of the Act

and refers to persons who have requested exemption from military service on

account of alienage.

2. The phrase “ineligible to citizenship” in section 212(a)(8)(A) of the Act refers

only to those aliens who are barred from naturalization by virtue of their

evasion of military service. Matter of Kanga, 22 I&N Dec. 1206 (BIA 2000). 

Therefore, an alien convicted of an aggravated felony is not thereby rendered

inadmissible under section 212(a)(8)(A) of the Act as an alien who is

permanently “ineligible to citizenship.” Id.

3. Note that section 212(a)(8)(A) is applicable only to aliens seeking to enter the

U.S. as an immigrant. It does not apply to nonimmigrants.

Z. Draft evaders

1. Section 212(a)(8)(B) provides that any person who has departed from or

remained outside the U.S. to avoid or evade training or service in the armed

forces in time of war or national emergency is inadmissible.

2. This section states that it is not applicable to aliens who were nonimmigrants

when they departed the U.S. and who are seeking admission as

nonimmigrants.

AA. Aliens previously removed or unlawfully present

1. Section 212(a)(9)(A)(i) provides that any alien who has been ordered removed

under section 235(b)(1) or at the end of proceedings under section 240
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initiated upon the alien’s arrival in the U.S. who again seeks admission within

5 years of the date of removal (or within 20 years in the case of a second or

subsequent removal or at any time in the case of an alien convicted of an

aggravated felony) is inadmissible unless the Attorney General has consented

to the alien’s applying for readmission under section 212(a)(9)(A)(iii).

2. Section 212(a)(9)(A)(ii) provides that any alien not described in section

212(a)(9)(A)(i) who has been ordered removed under section 240 or any other

provision of law or departed the U.S. while an order of removal was

outstanding and who seeks admission within 10 years of the date of such

alien’s departure or removal (or within 20 years of such date in the case of a

second or subsequent removal or at any time in the case of an alien convicted

of an aggravated felony) is inadmissible.

a. Exception. Section 212(a)(9)(A)(iii) provides that section 212(a)(9)(A)

shall not apply to an alien seeking admission within a period if, prior to

the date of the alien’s reembarkation at a place outside the U.S. or

attempt to be admitted from foreign contiguous territory, the Attorney

General has consented to the alien’s reapplying for admission.

3. Section 212(a)(9)(B)(i)(I) provides that any alien (other than an alien lawfully

admitted for permanent residence) who was unlawfully present in the U.S. for

a period of more than 180 days but less than 1 year, voluntarily departed the

U.S. (whether or not pursuant to section 244(e)) prior to the commencement of

proceedings under section 235(b)(1) or 240, and again seeks admission within

3 years of the date of such departure or removal is inadmissible. 

4. Section 212(a)(9)(B)(i)(II) of the Act provides that any alien (other than a

LPR) who has been unlawfully present in the U.S. for one year or more and

who again seeks admission within 10 years of the date of such alien’s

departure or removal from the U.S. is inadmissible. To be rendered

inadmissible for 10 years pursuant to this provision, an alien must depart the

United States after having been unlawfully present in the United States for one

year or longer. Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006). Pursuant to

IIRIRA, no period of an alien’s presence in the United States prior to April 1,

1997, may be considered “unlawful presence” for the purposes of determining

an alien’s inadmissibility under section 212(a)(9)(B) of the Act.

a. The Board has ruled that when an alien is unlawfully present for at least

1 year, then leaves the U.S. and, subsequently, seeks admission within

10 years after the departure, the alien is inadmissible under section

212(a)(9)(B)(i)(II) even if the alien’s departure was not made pursuant to

an order of removal or grant of voluntary departure. Matter of LemusLosa, 24 I&N Dec. 373 (BIA 2007).
page 44 of 365

5. “Unlawful presence” defined. An alien is deemed to be unlawfully present in

the U.S. if the alien is present in the U.S. after the expiration of the period of

stay authorized by the Attorney General or is present in the U.S. without being

admitted or paroled. INA § 212(a)(9)(B)(ii).

a. Note: Periods of unlawful presence have been interpreted to begin on or

after April 1, 1997. Dep’t of State Cable (no. 98-State-060539) (April 4,

1998), reprinted in 75 Interpreter Releases 543 (April 20, 1998).

b. Exceptions

(1) Minors. No period of time in which an alien is under 18 shall be

taken into account. INA § 212(a)(9)(B)(iii)(I).

(2) Asylees. No period of time in which an alien has a bona fide

application for asylum pending shall be taken into account unless

during such period the alien was employed without authorization in

the U.S. INA § 212(a)(9)(B)(iii)(II).

(3) Family unity. No period of time in which the alien is a beneficiary

of family unity protection pursuant to section 301 of the

Immigration Act of 1990 shall be taken into account. INA §

212(a)(9)(B)(iii)(III).

(4) Battered women and children. Section 212(a)(9)(B)(i) of the Act

shall not apply to an alien who demonstrates that the alien qualifies

for immigrant status under section 204(a)(1)(A)(iii),(A)(iv),(B)(ii),

or (B)(iii) and the alien has been battered or subjected to extreme

cruelty by a spouse or parent, or by a member of the spouse’s or

parent’s family residing in the same household as the alien and the

spouse or parent consented or acquiesced to such battery or cruelty,

or the alien’s child has been battered or subjected to extreme

cruelty by a spouse or parent of the alien (without the active

participation of the alien in the battery or cruelty) or by a member

of the spouse’s or parent’s family residing in the same household

as the alien when the spouse or parent consented to or acquiesced

in such battery or cruelty and the alien did not actively participate

in such battery or cruelty and there was a substantial connection

between the battery or cruelty and the alien’s violation of the terms

of the alien’s nonimmigrant visa. INA § 212(a)(9)(B)(iii)(IV).

(5) Victims of severe forms of trafficking in persons. Section

212(a)(9)(B)(i) of the Act shall not apply to an alien who

demonstrates that the severe form of trafficking (as that term is

defined in section 103 of the Trafficking Victims Protection Act of

2000 (22 U.S.C. 7102)) was at least one central reason for the
page 45 of 365

alien’s unlawful presence in the United States. INA §

212(a)(9)(B)(iii)(V).

c. Tolling for good cause. If an alien has been lawfully admitted or paroled

into the U.S., has filed, a nonfrivolous application for a change or

extension of status before the date of expiration of the period of stay

authorized by the Attorney General, and has not been employed without

authorization in the U.S. before or during the pendency of such

application, the calculation of the period of time unlawfully present in

the U.S. shall be tolled during the pendency of such application, but not

to exceed 120 days. INA § 212(a)(9)(B)(iv).

d. Waiver under section 212(a)(9)(B)(v). The Attorney General has sole

discretion to waive section 212(a)(9)(B)(i) in the case of an immigrant

who is the spouse or son or daughter of a U.S. citizen or of a LPR if it is

established to the satisfaction of the Attorney General that the refusal of

admission to such immigrant would result in extreme hardship to the

citizen or LPR spouse or parent of such alien.

6. Section 212(a)(9)(C)(i) of the Act provides that any alien who (I) has been

unlawfully present in the U.S. for an aggregate period of more than 1 year or

(II) has been ordered removed under section 235(b)(1), section 240, or any

other provision of the law, is inadmissible.

a. Exception. Section 212(a)(9)(C)(i) of the Act shall not apply to an alien

seeking admission more than 10 years after the date of the alien’s last

departure from the U.S. if, prior to the alien’s reembarkation at a place

outside the U.S. or attempt to be readmitted from a foreign contiguous

territory, the Attorney General has consented to the alien’s reapplying for

admission. INA § 212(a)(9)(C)(ii). However, an alien who reenters the

United States without admission after having previously been removed is

inadmissible under section 212(a)(9)(C)(i)(II), even if the alien obtained

the Attorney General’s permission to reapply for admission prior to

reentering lawfully. Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA

2006); see Gonzalez-Balderas v. Holder, 597 F.3d 869 (7th Cir. 2010)

(upholding Matter of Torres-Garcia).

(1) In Sarango v. Att’y Gen., 651 F.3d 380 (3d Cir. 2011), the Third

Circuit held that IJs lack jurisdiction to consider requests for

consent to reapply for admission under section 212(a)(9)(C)(ii)

because the plain language of that section authorizes the Secretary

of Homeland Security, not the Attorney General, to consider these

requests. 

b. Waiver. The Secretary of Homeland Security may waive the application

of section 212(a)(9)(C)(i) in the case of an alien who is a VAWA self-
page 46 of 365

petitioner if there is a connection between the alien’s battering or

subjection to extreme cruelty and the alien’s removal, departure from the

United States, or reentry or reentries into the United States; or attempted

reentry into the United States. INA § 212(a)(9)(C)(iii).

BB. Polygamists

1. Section 212(a)(10)(A) of the Act provides that any immigrant coming to the

U.S. to practice polygamy is inadmissible.

2. Note that this section is applicable only to aliens seeking to enter the U.S. as

an immigrant. It does not apply to nonimmigrants.

CC. Guardian required to accompany helpless alien

1. Section 212(a)(10)(B) makes inadmissible any alien accompanying another

alien who is inadmissible and certified under section 232(c) to be helpless

from infancy, sickness, or mental or physical disability if the accompanying

alien's protection or guardianship is required by the inadmissible alien.

DD. International child abductors

1. Section 212(a)(10)(C)(i) involves the custody of U.S. citizen children and

makes inadmissible aliens who, after a court order granting custody to a U.S.

citizen of a child having a lawful claim to U.S. citizenship, detain or withhold

custody outside the U.S. from the citizen granted custody.

2. This ground of inadmissibility exists only until the child is surrendered to the

U.S. citizen. See INA § 212(a)(10)(C)(ii).

3. However, section 212(a)(10)(C)(iii) provides that sections 212(a)(10)(C)(i)-

(ii) shall not apply: 

a. to a government official of the United States who is acting within the

scope of his or her official duties; 

b. To a government official of any foreign government if the official has

been designated by the Secretary of State at the Secretary’s sole and

unreviewable discretion; or

c. So long as the child is located in a foreign state that is a party to the

Convention on the Civil Aspects of International Child Abduction, done

at The Hague on October 25, 1980.

EE. Unlawful voters
page 47 of 365

1. Section 212(a)(10)(D)(i) provides that any alien who has voted in violation of

any Federal, State, or local constitutional provision, statute, ordinance, or

regulation is inadmissible. An exception may be available for those who

reasonably believed that they were U.S. citizens. See INA § 212(a)(10)(D)(ii).

FF. Former citizens who renounced citizenship to avoid taxation

1. Section 212(a)(10)(E) provides that any alien who is a former citizen of the

U.S. who officially renounces U.S. citizenship and who is determined by the

Attorney General to have renounced U.S. citizenship for the purpose of

avoiding taxation by the U.S. is inadmissible.

V. Grounds of deportability in removal proceedings

A. Inadmissible at time of entry or adjustment of status

1. Section 237(a)(1)(A) provides that any alien who at the time of entry or

adjustment of status was within one or more of the classes of aliens

inadmissible by the law existing at such time is deportable.

2. A waiver is available under section 237(a)(1)(H) for those who are

inadmissible under section 212(a)(6)(C)(i).

B. Present in violation of law

1. Section 237(a)(1)(B) provides that any alien who is present in the U.S. in

violation of this Act or any other law of the U.S. is deportable.

C. Violated nonimmigrant status

1. Section 237(a)(1)(C)(i) provides that any alien who was admitted as a

nonimmigrant and who has failed to maintain the nonimmigrant status in

which the alien was admitted or to which it was changed under section 248, or

to comply with the conditions of any such status, is deportable.

D. Violators of conditions of entry

1. Section 237(a)(1)(C)(ii) provides that any alien whom the Secretary of Health

and Human Services certifies has failed to comply with the terms, conditions,

and controls that were imposed under section 212(g) is deportable.

E. Termination of conditional permanent residence

1. Section 237(a)(1)(D)(i) provides that any alien with permanent residence on a

conditional basis under section 216 or section 216A who has had such status

terminated under such respective section is deportable.
page 48 of 365

a. Exception. Section 237(a)(1)(D)(ii) provides that section

237(a)(1)(D)(i) shall not apply in the cases described in section 216(c)(4)

(relating to certain hardship waivers).

F. Alien smuggling

1. Section 237(a)(1)(E)(i) provides that any alien who (prior to the date of entry,

at the time of any entry, or within 5 years of the date of any entry) knowingly

has encouraged, induced, assisted, abetted, or aided any other alien to enter or

to try to enter the U.S. in violation of law is deportable.

2. Section 237(a)(1)(E)(i) does not require a conviction.

a. Because section 237(a)(1)(E)(i) does not require a conviction, an IJ is

not limited by cases which prohibit looking to the factual basis of a

conviction, but may consider the underlying facts. Matter of MartinezSerrano, 25 I&N Dec. 151, 155 (BIA 2009).

3. A conviction for transporting an illegal alien within the U.S. (rather than

smuggling across the border) was not a deportable offense under former

section 241(a)(13) of the Act. Matter of I-M-, 7 I&N Dec. 389 (BIA 1957).

4. A conviction for aiding and abetting other aliens to evade and elude

examination and inspection by immigration officers in violation of 18 U.S.C.

§ 2(a) (2006) and 8 U.S.C. § 1325(a)(2) (2006) renders the convicted alien

removable under section 237(a)(1)(E)(i). Matter of Martinez-Serrano, 25 I&N

Dec. at 154-55.

5. Special rule in the case of family reunification. Section 237(a)(1)(E)(ii)

provides that section 237(a)(1)(E)(i) shall not apply in the case of an alien who

is an eligible immigrant (as defined in section 301(b)(1) of the Immigration

Act of 1990), was physically present in the U.S. on May 5, 1988, and is

seeking admission as an immediate relative or under section 203(a)(2)

(including under section 112 of the Immigration Act of 1990) or benefits

under section 301(a) of the immigration Act of 1990 if the alien, before May

5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien's

spouse, parent, son, or daughter (and no other individual) to enter the U.S. in

violation of law.

6. Waiver. Section 237(a)(1)(E)(iii) provides that the Attorney General may, in

the exercise of discretion for humanitarian purposes, to assure family unity, or

when it is otherwise in the public interest, waive application of section

237(a)(1)(E)(i) in the case of any alien lawfully admitted for permanent

residence if the alien has encouraged, induced, assisted, abetted, or aided only
page 49 of 365

an individual who at the time of the offense was the alien's spouse, parent,

son, or daughter (and no other individual) to enter the U.S. in violation of law.

G. Marriage fraud

1. Section 237(a)(1)(G)(i) provides that an alien shall be considered deportable

as having procured a visa or other documentation by fraud (within the

meaning of section 212(a)(6)(i)) and to be in the U.S. in violation of this Act

(within the meaning of section 237(a)(1)(B)) if the alien obtains any admission

into the U.S. with an immigrant visa or other documentation procured on the

basis of a marriage entered into less than 2 years prior to such admission of the

alien and which, within 2 years subsequent to any admission of the alien in the

U.S., shall be judicially annulled or terminated, unless the alien establishes to

the satisfaction of the Attorney General that such marriage was not contracted

for the purpose of evading any provisions of the immigration laws.

2. Section 237(a)(1)(G)(ii) provides that an alien shall be considered deportable

as having procured a visa or other documentation by fraud (within the

meaning of section 212(a)(6)(i)) and to be in the U.S. in violation of this Act

(within the meaning of section 237(a)(1)(B)) if it appears to the satisfaction of

the Attorney General that the alien has failed or refused to fulfill the alien’s

marital agreement which in the opinion of the Attorney General was made for

the purpose of procuring the alien’s admission as an immigrant.

H. CIMT w/in 5 years of admission

1. Section 237(a)(2)(A)(i) provides that any alien who is convicted of a crime

involving moral turpitude committed within 5 years (or 10 years in the case of

an alien provided LPR status under section 245(j)) after the date of admission,

and is convicted of a crime for which a sentence of one year or longer may be

imposed is deportable. See pages 21-25 above for discussion of CIMT as

ground of inadmissibility and pages 240-247 below for discussion of defenses

to charge of CIMT.

2. History lesson- Before 1988, deportability for conviction of a CIMT was

covered in section 241(a)(4) of the Act. In 1988, when the concept of an

aggravated felony was introduced, deportability for being convicted of one

was placed under section 241(a)(4)(B). Conviction for a CIMT was

redesignated as section 241(a)(4)(A). In 1990, the Act was reorganized and

conviction of a CIMT came under section 241(a)(2)(A)(i). In 1996, it was

again moved to section 237(a)(2)(A)(i). Therefore, many cases from before

1996 involve these various sections of the Act as the ground of deportability.

3. Also, prior to 1996, an alien convicted of a CIMT was deportable only if he

was sentenced to confinement or confined for one year or longer. The IIRIRA
page 50 of 365

changed the statute to read “for which a sentence of one year or longer may be

imposed.” See INA § 237(a)(2)(A)(i)(II).

4. Under earlier sections, the alien’s first entry or any subsequent entry could be

used as a basis for a deportation charge relating to the alien’s conviction of a

CIMT committed within 5 years of entry. Matter of A-, 6 I&N Dec. 684 (BIA

1955). Under current section 237(a)(2)(A)(i), an alien is removable if the

crime was committed within 5 years after the date of the admission by virtue

of which the alien was present in the United States when he committed the

crime. Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011) (overruling in part

Matter of Shanu, 23 I&N Dec. 754 (BIA 2005)). The 5-year clock is not reset

by a new admission from within the United States through adjustment of

status because that admission merely extends the alien’s presence. Id. at 406-

07. However, if an alien adjusts status after entering the United States without

inspection, the date of adjustment would be the date of admission for purposes

of section 237(a)(2)(A)(i) because that date would have commenced the

alien’s period of presence in the United States following an admission. Id. at

408 n.9. An alien who commits a CIMT while in the United States after

entering without inspection is inadmissible under section 212(a)(6)(A)(i) and

section 212(a)(2)(A)(i)(I), not deportable under section 237(a)(2)(A)(i), even

if he had been admitted to the United States at some point in the past, because

the past admissions are not tied to the period of presence during which he

committed the crime. Id. at 406, 406 n.5.

5. The “date of admission” for an alien who adjusted status pursuant to section 1

of the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-

732, 80 Stat. 1161, is the date referred to in section 1 of that Act: “a date thirty

months prior to the filing of [the application for permanent residence] or the

date of his last arrival into the United States, which ever date is later.” Matter

of Carrillo, 25 I&N Dec. 99 (BIA 2009).

6. An IJ cannot go behind the records of the criminal court to determine the guilt

or innocence of an alien. Matter of Khalik, 17 I&N Dec. 518 (BIA 1980);

Matter of McNaughton, 16 I&N Dec. 569 (BIA 1978); Matter of Fortis, 14

I&N Dec. 576 (BIA 1974); Matter of Sirhan, 13 I&N Dec. 592 (BIA 1970).

7. A waiver is available at section 237(a)(2)(A)(vi).

I. Two CIMTs

1. Section 237(a)(2)(A)(ii) provides that any alien who at any time after

admission is convicted of two or more crimes involving moral turpitude, not

arising out of a single scheme of criminal misconduct, regardless of whether

confined therefor and regardless of whether the convictions were in a single

trial, is deportable. See pages 21-25 above for discussion of CIMT as ground

of inadmissibility, pages 49-50 above for discussion of CIMT within five
page 51 of 365

years of admission as ground of deportability, and pages 240-247 below for

discussion of defenses to charge of CIMT.

2. The concept of “a single scheme of criminal misconduct.”

a. The normal inference to be drawn from different crimes committed at

different times against different persons is that they were separate and

distinct crimes and were not part of a common scheme or plan unless

there is evidence to the contrary. Matter of S-, 9 I&N Dec. 613 (BIA

1962), rev’d on other grounds by Sawkow v. INS, 314 F.2d 34 (3d Cir.

1963).

b. When an alien has performed an act which, in and of itself, constitutes a

complete, individual and distinct crime, then he becomes deportable

when he again commits such an act, provided he is convicted of both.

Matter of D-, 5 I&N Dec. 728 (BIA 1954). The fact that one may follow

the other closely, even immediately, in point of time is of no moment. Id.

Equally immaterial is the fact that they may be similar in character or

that each distinct and separate crime is a part of an over-all plan of

criminal misconduct. Id. The “single scheme” exception in section

241(a)(4)(A) of the Act relates to a situation where there are two

separate and distinct crimes but morally the transaction constitutes only a

single wrong. Id.

c. Simply because an alien commits a crime and later repeats the offense, it

does not follow that the offenses were part of a single scheme, even

though the crimes were similar. Matter of J-, 6 I&N Dec. 382 (BIA

1954). If each criminal act was a complete and distinct offense for which

the alien was convicted, repetition of the particular crime would

generally not constitute a single scheme. Id.

d. Criminal precedents in U.S. law make it clear that charges combined in

one indictment or information under separate counts constitute distinct

crimes. Matter of J-, 6 I&N Dec. 382 (BIA 1954). Coupling in a single

indictment or information is only a matter of convenience. Id.

e. A respondent’s testimony regarding his crimes will not establish a single

scheme of misconduct if the records of conviction show separate and

distinct offenses. Matter of O’Gorman, 11 I&N Dec. 6 (BIA 1965).

f. In Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992), the Board adopted

the analysis in Pacheco v. INS, 546 F.2d 448 (1st Cir. 1976), cert.

denied, 430 U.S. 985 (1977) which states that to be a “single scheme,”

the scheme must take place at one time, meaning there must be no

substantial interruption that would allow the participant to disassociate

himself from his enterprise and reflect on what he has done. The Board
page 52 of 365

also refused to conclude that Congress intended by the “single scheme”

language to insulate from deportability individuals who formulate a plan

at one time for criminal behavior involving multiple separate crimes,

while making deportable those who commit only two such crimes

without a plan and held that the statutory exception refers to acts, which

although separate crimes in and of themselves, were performed in

furtherance of a single criminal episode, such as where one crime

constitutes a lesser offense of another or where two crimes flow from

and are the natural consequence of a single act of criminal misconduct.

Id. Under this analysis, it is of no consequence that the alien’s separate

crimes (such as forgery or unauthorized use of a credit card) were

committed pursuant to an elaborate plan and that the modus operandi

was the same in each instance. Id. The Board focused on the alien’s

actual receipt of money from a victim as accomplishing the criminal

objective. Id. With each act, the alien accomplished a specific criminal

objective when he obtained things of value. Id. After each act, the alien

had the opportunity to disassociate himself from the enterprise and

reflect on what he had done and the commission of additional acts to

obtain things of value did not flow from and was not a natural

consequence of the first act of criminal misconduct. Id.

g. The statutory language of a “single scheme of criminal misconduct” was

meant to distinguish cases where there are separate and distinct crimes,

but they are performed in furtherance of a single criminal episode, such

as where two crimes flow from and are the natural consequence of a

single act of criminal misconduct. Matter of Adetiba, 20 I&N Dec. 506

(BIA 1992).

h. A single scheme of criminal misconduct would be present, if in the

performance of one unified act of criminal misconduct several offenses

are committed, such as breaking and entering followed by larceny or an

attempt to escape after an assault. Matter of J-, 6 I&N Dec. 382 (BIA

1954).

3. No single scheme was found in the following cases:

a. Robbery involving separate persons at different times. Matter of A-, 5

I&N Dec. 470 (BIA 1953).

b. Obtaining money by false pretenses involving distinct offenses. Matter

of D-, 5 I&N Dec. 728 (BIA 1954).

c. Two counts of income tax evasion with each count relating to a separate

year. Matter of J-, 6 I&N Dec. 382 (BIA 1954).
page 53 of 365

d. Forgery and uttering of different checks at different times even though

both checks were made payable to the same person. Matter of Z-, 6 I&N

Dec. 167 (BIA 1954).

e. Passing forged checks on two different occasions within 10 days

notwithstanding a general criminal intent to continue to defraud victims. 

Matter of B-, 8 I&N Dec. 236 (BIA 1958).

f. Using credit cards in the names of different people, with intent to

defraud, and obtaining things of value with the cards, notwithstanding

that the crimes were committed pursuant to an elaborate plan and the

modus operandi was the same in each instance. Matter of Adetiba, 20

I&N Dec. 506 (BIA 1992).

4. Some Circuit Courts interpret the phrase “single scheme of criminal

misconduct” differently than the Board. The Board stated that it will not

follow a more expansive interpretation outside the respective circuits. Matter

of Adetiba, 20 I&N Dec. 506 (BIA 1992).

a. Decisions of Circuit Courts on this point

(1) The First Circuit agrees with the Board. Pacheco v. INS, 546 F.2d

448 (1st Cir. 1976), cert. denied 430 U.S. 985 (1977). 

(2) The Second Circuit disagrees with the Board. Nason v. INS, 394

F.2d 223 (2d Cir. 1968), cert. denied, 393 U.S. 830 (1968).

(3) The Third Circuit disagrees with the Board. Sawkow v. INS, 314

F.2d 34 (3d Cir. 1963).

(4) The Fifth Circuit agrees with the Board. Iredia v. INS, 981 F.2d

847 (5th Cir. 1993) cert. denied 510 U.S. 872 (1993); Animashaun

v. INS, 990 F.2d 234 (5th Cir. 1993), cert. denied, 510 U.S. 995

(1993).

(5) The Ninth Circuit disagrees with the Board. Gonzalez- Sandoval v.

INS, 910 F.2d 614 (9th Cir. 1990).

(6) The Tenth Circuit agrees with the Board. Nguyen v. INS, 991 F.2d

621 (10th Cir. 1993).

5. A waiver is available at section 237(a)(2)(A)(vi).

J. Convicted of an aggravated felony
page 54 of 365

1. Section 237(a)(2)(A)(iii) provides that any alien who is convicted of an

aggravated felony at any time after admission is deportable. A waiver is

available at section 237(a)(2)(A)(vi). See pages 299-327 below for a full

discussion of aggravated felonies.

2. An alien who initially entered the U.S. without inspection but whose

conviction for an aggravated felony was subsequent to her adjustment of status

to that of a lawful permanent resident under section 245A of the Act is

deportable under section 237(a)(2)(A)(iii) of the Act as an alien who was

convicted of an aggravated felony “after admission.” Matter of Rosas, 22 I&N

Dec. 616 (BIA 1999).

K. Convicted of high speed flight

1. Section 237(a)(2)(A)(iv) provides that any alien convicted of a violation of 18

U.S.C. § 758 (relating to high speed flight from an immigration checkpoint) is

deportable. A waiver is available at section 237(a)(2)(A)(vi).

L. Failure to register as a sex offender

1. Section 237(a)(2)(A)(v) provides that any alien who is convicted under 18

USC § 2250 is deportable. (Pursuant to the Adam Walsh Child Protection and

Safety Act of 2006).

M. Controlled substance conviction 

1. Section 237(a)(2)(B)(i) provides that any alien who at any time after

admission has been convicted of a violation of (or a conspiracy or attempt to

violate) any law or regulation of a State, the U.S., or a foreign country relating

to a controlled substance (as defined in section 102 of the Controlled

Substances Act (21 U.S.C. § 802)), other than a single offense involving

possession for one’s own use of 30 grams or less of marijuana, is deportable.

2. History Lesson - Before 1990, deportability for conviction of drug offenses

was covered in section 241(a)(11) of the Act. In 1990, the Act was

reorganized and drug offenses came under section 241(a)(2)(B)(i). In 1996, it

was again moved to section 237(a)(2)(B)(i). Therefore, many cases from

before 1990 involve section 241(a)(11) as the ground of deportability.

3. Former section 241(a)(11) did not contain the word “attempt.” However, the

Board has long held that an alien convicted of an attempt to commit a drug

offense is deportable. Matter of G-, 6 I&N Dec. 353 (BIA 1954); Matter of

Bronsztejn, 15 I&N Dec. 281 (BIA 1974).

4. The exception for a single offense of possession for one's own use of 30 grams

or less of marijuana also was not included in former section 241(a)(11). This
page 55 of 365

exception does not apply to an alien convicted under a statute that has an

element requiring that possession of the marijuana be in a prison or other

correctional setting. Matter of Moncada, 24 I&N Dec. 62 (BIA 2007).

5. A sentence to confinement was not necessary for an alien to be deportable

under former section 241(a)(11). Matter of L-R-, 8 I&N Dec. 269 (BIA 1959),

overruled in part by Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988),

superseded by statute as recognized by Matter of Devison-Charles, 22 I&N

Dec. 1362 (BIA 2000); see also Chabolla-Delgado v. INS, 384 F.2d 360 (9th

Cir. 1967), cert. denied, 393 U.S. 865 (1968); Gutierrez v. INS, 323 F.2d 593

(9th Cir. 1963), cert. denied, 377 U.S. 910 (1964). No sentence is required

under the present law. INA § 237(a)(2)(B)(i).

6. Even if the imposition (rather than the execution) of sentence was suspended,

the alien is still deportable. Matter of Tucker, 15 I&N Dec. 337 (BIA 1975);

Matter of Wong, 12 I&N Dec. 721 (BIA 1968); Matter of Gonzalez de Lara,

12 I&N Dec. 806 (BIA 1968); Matter of Johnson, 11 I&N Dec. 401 (BIA

1965).

7. Former section 241(a)(11) of the Act made deportable aliens convicted of

selling a substance other than a narcotic pursuant to an agreement to sell

narcotics. Matter of T-C-, 7 I&N Dec. 100 (BIA 1956). Section

237(a)(2)(B)(i) appears to be subject to the same interpretation.

8. Where the record of conviction is silent as to the controlled substance

involved, an alien’s conviction in a state court was not a ground of

deportabilty under former section 241(a)(11) because the conviction could

have involved a substance defined as a narcotic under state law which was not

a narcotic drug within the meaning of the immigration laws. Matter of Paulus,

11 I&N Dec. 274 (BIA 1965). The same appears true for section

237(a)(2)(B)(i).

a. In a case involving a CIMT rather than a drug offense, the Board held

that recourse could not be had to the remarks of the State’s Attorney to

the court at the time of sentencing in order to determine if the crime

involved moral turpitude where the respondent was convicted under a

broad, divisible statute which enumerated several acts, the commission

of which may or may not involve moral turpitude, and the record of

conviction merely referred to the section of law involved. Matter of

Cassisi, 10 I&N Dec. 136 (BIA 1963).

b. The Board later determined that the remarks of the defendant may be

considered and held that the transcript from court proceedings which

resulted in a conviction for possession of controlled substances at which

the respondent, under questioning by the judge as part of the guilty plea,

admitted possession of heroin, with knowledge that the substance was
page 56 of 365

heroin, can be considered as part of the “record of conviction”, and a

finding of deportability under former section 241(a)(11) can be based on

it. Matter of Mena, 17 I&N Dec. 38 (BIA 1979).

c. The Ninth Circuit has held that the plain language of section

237(a)(2)(B)(i) requires the government to prove that the substance

underlying an alien’s state law conviction for possession is one that is

covered by section 102 of the Controlled Substance Act (“CSA”). See

Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010),

Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076-78 (9th Cir. 2007). 

9. Before the 1986 amendment to section 241(a)(11) changed its applicability to

a violation of “any law or regulation relating to a controlled substance,”

section 241(a)(11) applied only to convictions “relating to the illicit

possession of or traffic in narcotic drugs or marijuana.” During that time, the

Board held that a conviction for misprision of a felony (failure to report the

commission of a felony) did not subject an alien to deportation even though

the felony was possession of marihuana with intent to distribute. The Board

concluded that this offense did not relate to the “illicit possession of or traffic

in narcotic drugs or marihuana.” Matter of Velasco, 16 I&N Dec. 281 (BIA

1977).

10. A conviction for a violation of 21 U.S.C. § 843(b). The unlawful use of a

communication facility to facilitate commission of the felony of conspiracy to

import a quantity of cocaine, a felony under 21 U.S.C. § 963, was held to be a

conviction of a crime relating to the illicit traffic in narcotic drugs as described

in former section 212(a)(23) of the Act. Matter of Chang, 16 I&N Dec. 90

(BIA 1977).

11. Because of the 1986 amendment to section 241(a)(11) by the Anti-Drug

Abuse Act of 1986, an alien convicted of unlawful use (rather than possession

or trafficking) of a controlled substance was held to be deportable. Matter of

Hernandez-Ponce, 19 I&N Dec. 613 (BIA 1988). The wording of section

237(a)(2)(B)(i) on this point is the same, so this should continue to be good

law.

12. Since its 1986 amendment, former section 241(a)(11) of the Act made

deportable an alien convicted of use or being under the influence of a

controlled substance. Matter of Esqueda, 20 I&N Dec. 850 (BIA 1994). The

argument that the amendment was only to include “designer” drugs by

eliminating the list of prohibited drugs and refer instead to the Controlled

Substances Act was rejected. See also Matter of Hernandez-Ponce, 19 I&N

Dec. 613 (BIA 1988).

13. The Ninth Circuit recognized an incongruity in including in the statute an

exception to deportability for a single offense of possession for one’s own use
page 57 of 365

of 30 grams or less of marijuana but omitting a similar exception for actual

use of marijuana. Flores-Arellano v. INS, 5 F.3d 360 (9th Cir. 1993).

Nevertheless, the court determined that the plain language of the phrase “any

law . . . relating to a controlled substance” is unambiguous and that its

ordinary meaning includes laws proscribing use or being under the influence

of a controlled substance. Id.

14. An alien convicted of aiding and abetting the sale of cocaine was deportable

under former section 241(a)(11). Londono-Gomez v. INS, 699 F.2d 475 (9th

Cir. 1983). Section 237(a)(2)(B)(i) appears to be subject to the same

interpretation.

15. An alien convicted of facilitation (providing another with the means or

opportunity and aiding in commission of an offense) of the sale of cocaine was

also deportable. Matter of Del Risco, 20 I&N Dec. 109 (BIA 1989). Section

237(a)(2)(B)(i) appears to be subject to the same interpretation.

16. A conviction for solicitation (an attempt to conspire) to commit a crime

relating to a controlled substance rendered an alien deportable under former

section 241(a)(11). Matter of Beltran, 20 I&N Dec. 521 (BIA 1992). Section

237(a)(2)(B)(i) appears to be subject to the same interpretation in all

jurisdictions but the Ninth Circuit. Matter of Zorilla-Vidal, 24 I&N Dec. 768

(BIA 2009).

17. A conviction for misprision of a felony (the felony being possession of

marijuana with intent to distribute) was held not to be a conviction of a law

“relating to the illicit possession of or traffic in narcotic drugs or marijuana”

and therefore did not render a respondent deportable under former section

241(a)(11). Matter of Velasco, 16 I&N Dec. 281 (BIA 1977).

18. An alien convicted under 18 U.S.C. § 924(c) of unlawful carrying of a firearm

during the commission of a felony was once held not to be deportable under

former section 241(a)(11) of the Act even though the underlying felony was

possession of heroin because 18 U.S.C. § 924(c) was an offense separate and

distinct from the underlying felony and not “a law relating to the illicit

possession of a narcotic drug.” Matter of Carrillo, 16 I&N Dec. 625 (BIA

1978). 18 U.S.C. § 924(c) was amended in 1986 to apply to use of a firearm

during a drug trafficking crime or a crime of violence. The Board later held

that an alien convicted under 18 U.S.C. § 924(c)(1) for use of a firearm during

a drug trafficking crime is deportable under former section 241(a)(2)(A)(iii) of

the Act as an alien convicted of an aggravated felony. Matter of K-L-, 20 I&N

Dec. 654 (BIA 1993). Since a drug related aggravated felony would also be an

offense relating to controlled substances, an alien convicted of use of a firearm

during a drug trafficking crime should also be deportable under section

237(a)(2)(B)(i) of the Act.
page 58 of 365

19. The Ninth Circuit has held that a conviction under the Travel Act (18 U.S.C. §

1952) for traveling in interstate commerce with the intention of distributing

the proceeds derived from the unlawful distribution of drugs in violation of 18

U.S.C. § 1952 (a)(1) is a conviction “relating to a controlled substance.” 

Johnson v. INS, 971 F.2d 340 (9th Cir. 1992). 

N. Drug abusers and addicts

1. Section 237(a)(2)(B)(ii) provides that any alien who is, or at any time after

admission has been, a drug abuser or addict is deportable.

O. Firearm offenses

1. Section 237(a)(2)(C) provides that any alien who at any time after admission

is convicted under any law of purchasing, selling, offering for sale,

exchanging, using, owning, possessing, or carrying, or of attempting or

conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or

carry, any weapon, part, or accessory which is a firearm or destructive device

(as defined in 18 U.S.C. section 921(a)) in violation of any law is deportable.

2. History lesson - Before 1990, deportability for conviction of firearm offenses

was covered in section 241(a)(14) of the Act. In 1990, the Act was

reorganized and firearm offenses came under section 241(a)(2)(C). In 1996, it

was again moved to section 237(a)(2)(C). Therefore, many cases from before

1996 involve former section 241(a)(2)(C) as the ground of deportability.

3. Prior statutes and retroactivity. Former section 241(a)(14) originally made

deportable only aliens convicted of possessing or carrying any weapon which

either shoots automatically or semiautomatically more than one shot by a

single function of the trigger or a sawed-off shotgun. Section 7348 of the

Anti-Drug Abuse Act of 1988 amended former section 241(a)(14) to include

convictions for possessing or carrying any “firearm or destructive device...or

any revolver.” However, these amendments were effective only against aliens

convicted on or after the effective date of the Anti-Drug Abuse Act of 1988

[November 18, 1988]. Former section 241(a)(2)(C) of the Act represented the

enactment of a new statutory provision rather than a change of the numerical

designation of former section 241(a)(14) because it increased the number of

weapons offenses that render an alien deportable. Former section

241(a)(2)(C) of the Act completely superceded all former versions of that

deportation ground and was not limited regarding the date when a conviction

must take place. Therefore, aliens were deportable who were convicted before

the enactment of former section 241(a)(2)(C) as well as after. Matter of

Chow, 20 I&N Dec. 647 (BIA 1993), aff'd sub nom. Chow v. INS, 9 F.3d

1547 (5th Cir. 1993). Present section 237(a)(2)(C) would also appear to also

include aliens convicted before 1996.
page 59 of 365

4. Definition of “firearm” - 18 U.S.C. § 921(a)(3) defines a firearm as:

a. any weapon which will or may be converted to expel a projectile by

explosive action;

b. the frame or receiver of any such weapon;

c. any firearm muffler or silencer;

d. any destructive device, but

e. the definition does not include an antique firearm.

5. Definition of “destructive device” - 18 U.S.C. § 921(a)(4) defines a

destructive device as:

a. any bomb, grenade, rocket (having a propellant charge of more than 4

ounces), missile (having an explosive or incendiary charge of more than

1/4 ounce), mine, or similar device which is explosive, incendiary, or

contains poison gas;

b. any weapon (other than shotguns or shotgun shells for sporting use)

which will or may be converted to expel a projectile by explosive or

other propellant and which has a barrel with a bore of more than 1⁄2 inch

in diameter;

c. any combination of parts from which a destructive device may be

assembled.

6. A conviction for an attempted firearms offense would not support a charge of

deportability under former section 241(a)(2)(C) of the Act. Matter of Hou, 20

I&N Dec. 513 (BIA 1992), superseded by statute as recognized in Matter of

St. John, 21 I&N Dec. 593 (BIA 1996). Apparently to legislatively overrule

Matter of Hou, section 203(b)(1) of the Immigration and Nationality Technical

Corrections Act of 1994 amended former section 241(a)(2)(C) to include both

an attempt and a conspiracy. Section 203(c) provided that the amendment

applies to convictions occurring before, on, or after the effective date.

7. After the enactment of section 101(a)(48)(A) of the Act, an alien remains

convicted for immigration purposes notwithstanding a subsequent state action

purporting to erase the original determination of guilt through a rehabilitative

process. Matter of Roldan, 22 I&N Dec. 512 (BIA 1999) review granted,

order vacated by Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000),

overruled by Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc);

but see Matter of Salazar, 23 I&N Dec. 223 (BIA 2002) (recognizing an

exception for controlled substances convictions arising in the Ninth Circuit
page 60 of 365

pursuant to Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000)). In

Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011) (en banc), the Ninth

Circuit vacated its decision in Lujan-Armendariz, but held that its decision

should be applied prospectively only, and that such prospective application

meant that the instant petition would be decided under the Lujan-Armendariz

holding. 

8. The antique firearm exception to the definition of “firearm” in 18 U.S.C. §

921(a)(3) is an affirmative defense that must be sufficiently raised by an alien

charged under section 237(a)(2)(C) of the Act. Matter of Mendez-Orellana,

25 I&N Dec. 254 (BIA 2010). Where the government has presented evidence

that an alien has been convicted of an offense involving a firearm, it has met

its burden of presenting clear and convincing evidence of deportability, and

the burden then shifts to the respondent to show that the weapon was, in fact,

antique. Id. 

9. A conviction for improper delivery of a firearm under 18 U.S.C. § 922(e)

qualifies as a firearms offense under section 237(a)(2)(C), despite the fact that

the enumerated list does not mention delivery. Malilia v. Holder, 632 F.3d

598 (9th Cir. 2011). 

10. Sentence enhancement or element of the offense

a. The sentence enhancement provision of section 12022(a) of the

California Penal Code, which allows for the imposition of an additional

and consecutive term of imprisonment upon a person convicted of a

felony where any one of the principals was armed with a firearm, does

not create a separate offense, but rather imposes additional punishment,

and therefore does not constitute a conviction under California law.

Matter of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992). Therefore, an

alien who was convicted of 5 counts of attempted murder in the second

degree and whose sentence under one count was enhanced pursuant to

section 12022(a) of the California Penal Code because a codefendant

was armed with a firearm in the attempted commission of the felony has

not been convicted of a firearm offense under California law and is not

deportable under former section 241(a)(2)(C) of the Act. Id.

b. A conviction for assault in the third degree under section

9A.36.031(1)(f) of the Revised Code of Washington is not a firearm

offense where use of a firearm is not an element of the offense and a

respondent so convicted is not deportable under former section

241(a)(2)(C) of the Act. Matter of Perez-Contreras, 20 I&N Dec. 615

(BIA 1992). In this case, no element of the crime to which the

respondent entered a plea of guilty related to the use of a weapon. 

Although the criminal information stated that the respondent used a
page 61 of 365

pistol in the assault, he was not charged with use of a pistol; and did not

plead guilty to such use.

c. A respondent convicted of assault with a firearm, in violation of

California Penal Code section 245(a)(2), has been convicted of a

firearms violation and is deportable under former section 241(a)(2)(C) of

the Act. Matter of Montenegro, 20 I&N Dec. 603 (BIA 1992),

superseded by statute on other grounds as recognized by Matter of Blake,

23 I&N Dec. 722 (BIA 2005) review granted, cause remanded by Blake

v. Carbone, 489 F.3d 88 (2d Cir. 2007). Although the case primarily

involved eligibility for a waiver under former section 212(c) of the Act

and the Board did not discuss at length the issue of deportability, it

seems that the respondent was deportable under section 241(a)(2)(C)

because the use of a firearm was an element of the offense specifically

stated in the statute. The Board also rejected an argument that because

the respondent's conviction for assault with a firearm could also render

him excludable under section 212(a)(2)(A)(i)(I) of the Act as an alien

convicted of a CIMT, he should be allowed to apply for a waiver under

section 212(c).

d. An alien convicted under 18 U.S.C. § 924(c)(1) for use of a firearm

during a drug trafficking crime is deportable under former section

241(a)(2)(C) of the Act as an alien convicted of a firearm violation as

well as under former section 241(a)(2)(A)(iii) of the Act as an alien

convicted of an aggravated felony. Matter of K-L-, 20 I&N Dec. 654

(BIA 1993). In this case, the Board distinguished its decision in Matter

of Rodriguez-Cortes, 20 I&N Dec. 587 (BIA 1992) and held that 18

U.S.C.§ 924(c)(1) creates an offense separate from the underlying

offenses and is not merely a sentence enhancement.

e. An alien convicted of the first degree felonies of armed burglary and

robbery with a firearm under sections 810.02 and 812.13 of the Florida

Statutes was convicted of firearm offenses and therefore deportable

under former section 241(a)(2)(C) of the Act because the use of a

firearm was an essential element of the crimes, i.e. the use of a firearm

elevated the crimes to first degree felonies and triggered a mandatory

minimum sentence as distinguished from a statutory sentence

enhancement. Matter of P-F-, 20 I&N Dec. 661 (BIA 1993).

f. Although section 775.087 of the Florida Statutes is, on its face, a penalty

enhancement provision designed to raise the penalty for conviction of a

felony (actually the degree of the felony) where the felony is committed

with the use of a firearm, under Florida case law, use of a firearm

becomes an element of the substantive offense of first degree murder

with a firearm where the elements of murder under section 782.04 of the

Florida Statutes and use of a firearm under section 775.087 of the
page 62 of 365

Florida Statutes are charged and proven. Matter of Lopez-Amaro, 20

I&N Dec. 668 (BIA 1993), aff'd Lopez-Amaro v. INS, 25 F.3d 986 (11th

Cir. 1994). Therefore, a conviction for first degree murder in violation of

sections 782.04 and 775.087 of the Florida Statutes constitutes a

firearms offense under former section 241(a)(2)(C) of the Act because

the use of a firearm is deemed to be an element of the substantive

offense. Id.

11. Before a circuit court, the alien argued that for his conduct to trigger former

section 241(a)(2)(C), the alien contends that he not only need have made false

statements in connection with a firearms purchase, he must also have been the

individual doing the buying. Hall v. INS, 167 F.3d 852 (4th Cir. 1999). The

court, in dismissing the appeal, held that nothing on the face of former section

241(a)(2)(C), limits the statute to the actual purchaser of the firearm. Id.

12. The First Circuit has held that the offense of “control” of a firearm in violation

of Rhode Island section 11-47-7 constitutes constructive possession of a

firearm. Aybar-Alejo v. INS, 230 F.3d 487 (1st Cir. 2000).

13. Evidence

a. Where the statute under which an alien was convicted encompasses

offenses that constitute firearms violations and offenses that do not, the

Board looks to the record of conviction, and to other documents

admissible as evidence in proving a criminal conviction, to determine

whether the specific offense of which the alien was convicted constitutes

a firearms violation within the meaning of section 241(a)(2)(C) of the

Act. Matter of Teixeira, 21 I&N Dec. 316 (BIA 1996); Matter of

Madrigal, 21 I&N Dec. 323 (BIA 1996); Matter of Pichardo, 21 I&N

Dec. 330 (BIA 1996).

b. A police report, standing alone, is not part of a “record of conviction,”

nor does it fit any of the regulatory descriptions found at 8 C.F.R. §

1003.41 for documents that are admissible as evidence in proving a

criminal conviction, and it therefore should not be considered in

determining whether the specific offense of which an alien was

convicted constituted a firearms violations. Matter of Teixeira, 21 I&N

Dec. 316 (BIA 1996). Although a police report concerning

circumstances of arrest that is not part of a record of conviction is

appropriately admitted into evidence for the purpose of considering an

application for discretionary relief, it should not be considered for the

purpose of determining deportability where the Act mandates a focus on

a criminal conviction, rather than on conduct. Id.

c. The transcript from the respondent’s plea and sentence hearing, during

which he admitted possession of a firearm, is part of the record of
page 63 of 365

conviction and, consequently, was sufficient to establish that the

respondent had been convicted of a firearms offense and was deportable

under former section 241(a)(2)(C) of the Act. Matter of Madrigal, 21

I&N Dec. 323 (BIA 1996).

d. Where the only criminal court document offered into the record to prove

an alien’s deportability under former section 241(a)(2)(C) of the Act

consists of a Certificate of Disposition which fails to identify the

subdivision of the statute under which the alien was convicted or the

weapon that he was convicted of possessing, deportability has not been

established, even where the alien testifies that the weapon in his

possession at the time of his arrest was a gun, since it is the crime that

the alien was convicted of rather than a crime that he may have

committed which determines whether he is deportable. Matter of

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

P. Miscellaneous crimes

1. Section 237(a)(2)(D) provides that an alien is deportable who at any time has

been convicted (the judgment on such conviction becoming final) of, or has

been so convicted of a conspiracy or attempt to violate:

a. any offense under chapter 37 (relating to espionage), chapter 105

(relating to sabotage), or chapter 115 (relating to treason and sedition) of

title 18, United States Code, for which a term of imprisonment of 5 or

more years may be imposed;

b. any offense under 18 U.S.C. § 871 or 960;

c. a violation of any provision of the Military Selective Service Act (50

U.S.C. App 451 et seq. or the Trading With the Enemy Act (50 U.S.C.

App. 1 et seq.); or

d. a violation of section 215 or 278 of the Immigration and Nationality Act.

Q. Crimes of domestic violence, stalking, and child abuse

1. Section 237(a)(2)(E)(i) provides that any alien who at any time after entry is

convicted of a crime of domestic violence, a crime of stalking, or a crime of

child abuse, child neglect, or child abandonment is deportable.

2. Definition of “a crime of domestic violence.” Section 237(a)(2)(E)(i)

provides “For purposes of this clause, the term ‘crime of domestic violence’

means any crime of violence (as defined in section 16 of title 18, United States

Code) against a person committed by a current or former spouse of the person,

by an individual with whom the person shares a child in common, by an
page 64 of 365

individual who is cohabiting with or has cohabited with the person as a

spouse, by an individual similarly situated to a spouse of the person under the

domestic or family violence laws of the jurisdiction where the offense occurs,

or by any other individual against a person who is protected from that

individual’s acts under the domestic or family violence laws of the United

States or any State, Indian tribal government, or unit of local government.”

a. “Crime of Domestic Violence.” The Ninth Circuit has held that to

determine whether the victim of the crime is one described in section

237(a)(2)(E)(i), the IJ must first look to the fact of the statute of

conviction. Tokatly v. Ashcroft, 371 F.3d 613 (9th Cir. 2004). When it

is not clear from the statute that the victim is a person described in

section 237(a)(2)(E)(i) of the Act, the IJ may look to selected conviction

documents. Id. (applying Taylor v. United States, 495 U.S. 575 (1990)). 

In removal proceedings arising within the jurisdiction of the Ninth

Circuit, the offense of domestic battery in violation of sections 242 and

243(e)(1) of the California Penal Code does not presently qualify

categorically as a “crime of violence” under 18 U.S.C. § 16 (2000), such

that it may be considered a “crime of domestic violence” under section

237(a)(2)(E)(i) of the Act. Matter of Sanudo, 23 I&N Dec. 968 (BIA

2006).

(1) The Seventh Circuit held that a second conviction for domestic

battery under Illinois law for intentionally causing bodily harm to a

family member qualified as a “crime of violence” and thus an

aggravated felony barring cancellation of removal. DeLeon

Castellanos v. Holder, 652 F.3d 762 (7th Cir. 2011).

b. Child abuse. Child abuse is not defined in the Act. However, the Board

of Immigration Appeals has recognized that child abuse encompasses a

broad range of activity, including any form of cruelty to a child’s

physical, moral or mental well-being. Matter of Rodriguez-Rodriguez,

22 I&N Dec. 991 (BIA 1999). The Board subsequently held that the

term “crime of child abuse” means any offense involving an intentional,

knowing, reckless, or criminally negligent act or omission that

constitutes maltreatment of a person under 18 years old or that impairs

such a person’s physical or mental well-being, including sexual abuse or

exploitation. The Board also held that whether a person is removable

based on a conviction for a “crime of child abuse” is determined by the

elements of the alien’s offense, as reflected in the statutory definition of

the crime or admissible portions of the conviction record. Matter of

Velazquez-Herrera, 24 I&N Dec. 503 (BIA 2008).

(1) However, the term “crime of child abuse” is not limited to offenses

requiring proof of injury to the child. Matter of Soram, 25 I&N

Dec. 378, 381 (BIA 2010). The phrase “an act or omission that
page 65 of 365

constitutes maltreatment of child” is sufficiently broad to

encompass endangerment-type crimes, including a crime in

violation of section 18-6-401(1)(a) of the Colorado Revised

Statutes. Id. at 383.

(2) The Ninth Circuit held that a conviction for child endangerment, in

violation of California Penal Code section 273a(b), is not

categorically a crime of child abuse within the meaning of section

237(a)(2)(E)(i) because it reaches conduct that creates only

potential harm to a child and does not require actual injury. 

Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009), but see Matter

of Soram, 25 I&N Dec. 378 (BIA 2010). 

(3) The Ninth Circuit held that a felony conviction for child

molestation in the third degree under Revised Code of Washington

section 9A.44.089, which prohibits a person from having sexual

contact with a minor who is 14 or 15 years of age when the

perpetrator is at least forty-eight months older than the minor,

constitutes a crime of child abuse within the meaning of section

137(a)(2)(E)(i) of the Act. Jimenez-Juarez v. Holder, 635 F.3d

1169 (9th Cir. 2011). 

R. Violators of protection orders

1. Section 237(a)(2)(E)(ii) provides that any alien who at any time after entry is

enjoined under a protection order issued by a court and whom the court

determines has engaged in conduct that violates the portion of a protection

order that involves protection against credible threats of violence, repeated

harassment, or bodily injury to the person or persons for whom the protection

order was issued is deportable.

2. Section 237(a)(E)(ii) requires that an alien violate part of the protection order

that “involves protection against violence, threats, or harassment” not that the

alien actually engage in violent, threatening, or harassing behavior. Szalai v.

Holder, 572 F.3d 975, 981 (9th Cir. 2009); Hoodho v. Holder, 558 F.3d 184

(2d Cir. 2009). See Matter of Strydom, 25 I&N Dec. 507 (BIA 2011).

S. Failure to register

1. Section 237(a)(3)(A) provides that an alien who has failed to comply with the

provisions of section 265 is deportable, unless the alien establishes to the

satisfaction of the Attorney General that such failure was reasonably excusable

or was not willful.
page 66 of 365

a. Section 265 requires certain aliens to notify the Attorney General in

writing of each change of address and new address within 10 days of a

change of address.

2. Conviction for failure to register or falsification of documents. Section

237(a)(3)(B) provides that any alien is deportable who at any time has been

convicted:

a. under section 266(c) of the Act or under section 36(c) of the Alien

Registration Act, 1940,

b. of a violation of, or an attempt or a conspiracy to violate, any provision

of the Foreign Agents Registration Act of 1938 (22 U.S.C. § 611 et

seq.), or

c. of a violation of, or an attempt or a conspiracy to violate, 18 U.S.C. § 

1546 (relating to fraud and misuse of visas, permits, and other entry

documents).

T. Document fraud

1. Section 237(a)(3)(C)(i) provides that an alien who is the subject of a final

order for violation of section 274C is deportable.

2. Waiver. Section 237(a)(3)(C)(ii) provides that the Attorney General may

waive section 237(a)(3)(C)(i) in the case of an alien lawfully admitted for

permanent residence if no previous civil money penalty was imposed against

the alien under section 274C and the offense was incurred solely to assist, aid,

or support the alien’s spouse or child (and no other individual).

U. Falsely claiming citizenship

1. Section 237(a)(3)(D)(i) provides that any alien who falsely represents, or has

falsely represented, himself to be a citizen of the U.S. for any purpose or

benefit under the Act (including section 274A) or any Federal or State law is

deportable. A false representation of United States citizenship for the purpose

of obtaining employment from a private employer is considered to be done for

a “purpose or benefit” under the Act. Ferrans v. Holder, 612 F.3d 528 (6th

Cir. 2010); Theodros v. Gonzales, 490 F.3d 396 (5th Cir. 2007); Kechkar v.

Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007). 

2. An alien who reasonably believed that he was a citizen may fall under an

exception at section 237(a)(3)(D)(ii).

V. National security and related grounds
page 67 of 365

1. Section 237(a)(4)(A) provides that any alien is deportable who has engaged, is

engaged, or at any time after admission engages in:

a. any activity to violate any law of the U.S. relating to espionage or

sabotage or to violate or evade any law prohibiting the export from the

U.S. of goods, technology, or sensitive information,

b. any other criminal activity which endangers public safety or national

security, or

c. any activity a purpose of which is the opposition to, or the control or

overthrow of, the Government of the U.S. by force, violence, or other

unlawful means.

W. Terrorist activities

1. Section 237(a)(4)(B) of the Act [as amended by the REAL ID Act of 2005]

provides that any alien who has engaged, is engaged, or at any time after

admission engages in any terrorist activity (as defined in section 212(a)(3)(B),

(F)) is deportable.

X. Adverse foreign policy consequences

1. Section 237(a)(4)(C)(i), former section 241(a)(4)(C)(i), of the Act provides

that an alien whose presence or activities in the U.S. the Secretary of State has

reasonable ground to believe would have potentially serious adverse foreign

policy consequences for the U.S. is deportable.

2. In order to establish deportability under former section 241(a)(4)(C)(i) of the

Act, the INS has the burden of proving by clear, unequivocal, and convincing

evidence that the Secretary of State has made a facially reasonable and bona

fide determination that an alien’s presence or activities in the United States

would have potentially serious adverse foreign policy consequences for the

United States. Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA 1999). A

letter from the Secretary of State conveying the Secretary’s determination that

an alien’s presence in this country would have potentially serious adverse

foreign policy consequences for the United States, and stating facially

reasonable and bona fide reasons for that determination, is presumptive and

sufficient evidence that the alien is deportable under former section

241(a)(4)(C)(i) of the Act, and the Service is not required to present additional

evidence of deportability. Id.

3. The Government is not required to permit an alien who is deemed to be

deportable under former section 241(a)(4)(C)(i) of the Act to depart the United

States voluntarily prior to the initiation of deportation proceedings where the

alien’s presence is pursuant to his voluntary decision to enter or seek
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admission to this country. Matter of Ruiz-Massieu, 22 I&N Dec. 833 (BIA

1999), distinguishing Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988),

Matter of Yam, 16 I&N Dec. 535 (BIA 1978), and Matter of C-C-, 3 I&N

Dec. 221 (BIA 1948).

4. Extradition proceedings are separate and apart from any immigration

proceeding and the Government’s success or failure in obtaining an order of

extradition has no effect on deportation proceedings. Matter of McMullen, 17

I&N Dec. 542, 548 (BIA 1980), rev’d on other grounds, 658 F.2d 1312 (9th

Cir. 1981), on remand, Matter of McMullen, 19 I&N Dec. 90 (BIA 1984),

aff’d, 788 F.2d 591 (9th Cir. 1986), overruled in part on other grounds by

Barapind v. Enomoto, 400 F.3d 744 (9th Cir. 2005); Matter of Ruiz-Massieu,

22 I&N Dec. 833 (BIA 1999). The Board pointed out that the standards of

proof for the two proceedings are different. McMullen, 17 I&N Dec. at 548.

Also, the existence of criminal charges is not the only possible basis for a

determination that the respondent’s presence may have adverse foreign policy

consequences. Id.

5. Exceptions. Section 237(a)(4)(C)(ii) provides that the exceptions described in

clauses (ii) and (iii) of section 212(a)(3)(C) shall apply to deportability under

section 237(a)(4)(C)(i) in the same manner as they apply to inadmissibility

under section 212(a)(3)(C)(i).

Y. Assisted in Nazi persecution or engaged in genocide

1. Section 237(a)(4)(D) provides that any alien described in clause (i) or (ii) of

section 212(a)(3)(E) is deportable. See Matter of D-R-, 25 I&N Dec. 445

(BIA 2011).

Z. Public Charge

1. Section 237(a)(5) provides that any alien who, within 5 years after the date of

entry, has become a public charge from causes not affirmatively shown to

have arisen since entry is deportable.

AA. Unlawful voters

1. Section 237(a)(6)(A) provides that any alien who has voted in violation of any

Federal, state, or local constitutional provision, statute, ordinance, or

regulation is deportable. An alien who reasonably believed that he was a U.S.

citizen may fall under an exception at section 237(a)(6)(B).

BB. Deportation of certain nonimmigrants prohibited without approval

1. Section 237(b) provides that an alien admitted as a nonimmigrant under the

provisions of either section 101(a)(15)(A)(i) or 101(a)(15)(G)(i), and who fails
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to maintain a status under either of those provisions, shall not be required to

depart from the U.S. without the approval of the Secretary of State, unless

such alien is subject to deportation under section 237(a)(4).

CC. Waiver under section 237(c) for special immigrants

1. Section 237(c) provides that the following grounds of deportability shall not

apply to a special immigrant described in section 101(a)(27)(J) [an immigrant

declared dependent on a juvenile court] based upon circumstances that existed

before the date the alien was provided such special immigrant status:

a. Section 237(a)(1)(A) - inadmissible at time of entry for grounds of

inadmissibility other than:

(1) Section 212(a)(2) - criminal & related grounds, and

(2) Section 212(a)(3) - national security, terrorist activity, & related

grounds.

b. Section 237(a)(1)(B) - in the U.S. in violation of law.

c. Section 237(a)(1)(C) - violated nonimmigrant status or condition of

entry.

d. Section 237(a)(1)(D) - termination of conditional residence.

e. Section 237(a)(3)(A) - failure to report change of address.

VI. Procedure in removal proceedings

A. Notice to the alien

1. The charging document: Notice to Appear (“NTA”). Section 239(a)(1)

provides that in removal proceedings under section 240, written notice

(referred to as a notice to appear) shall be given in person to the alien or, if

personal service is not practicable, through service by mail to the alien or the

alien's counsel of record and shall specify the following: the nature of the

proceedings against the alien; the legal authority under which the proceedings

are conducted; the acts or conduct alleged to be in violation of the law; the

charges against the alien and the statutory provisions alleged to have been

violated; the right to be represented by counsel; the requirement that the alien

must immediately provide the Attorney General with a written record of any

address and telephone number (if any) at which the alien may be contacted;

the requirement that the alien must provide the Attorney General immediately

with a written record of any change of the alien's address or telephone number;

the consequences under section 240(b)(5) of failure to provide address and
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telephone information; the time and place at which the proceeding will be

held; the consequences under section 240(b)(5) of the failure, except under

exceptional circumstances, to appear at such proceedings.

2. Section 239(a)(2)(A) provides that in the case of any change or postponement

in the time and place of such proceedings, a written notice shall be given in

person to the alien (or, if personal service is not practicable, through service

by mail to the alien or to the alien's counsel of record, if any) specifying the

new time or place of the proceedings and the consequences under section

240(b)(5) of failing, except under exceptional circumstance, to attend such

proceedings.

a. Exception: Section 239(a)(2)(B) provides that in the case of an alien not

in detention, a written notice shall not be required if the alien has failed

to provide the address required.

3. Securing of counsel. Section 239(b)(1) provides that in order that an alien be

permitted the opportunity to secure counsel before the first hearing date in

proceedings under section 240, the hearing date shall not be scheduled earlier

than 10 days after the service of the notice to appear, unless the alien requests

in writing an earlier hearing date.

a. Current lists of counsel. Section 239(b)(2) provides that the Attorney

General shall provide lists (updated not less often than quarterly) of

persons who have indicated their availability to represent pro bono aliens

in proceedings under section 240.

b. Rule of construction. Section 239(b)(3) states that nothing in section

239(b) may be construed to prevent the Attorney General from

proceeding against an alien pursuant to section 240 if the 10 days has

elapsed and the alien has failed to secure counsel.

c. All of the above would lead to the conclusion that the alien has only 10

days in which to acquire counsel. However 8 C.F.R. § 1240.10(a)(1)

provides that an IJ shall advise a respondent of the right to be

represented and to determine if the alien desires representation. If the

alien desires representation, the hearing is to be continued to allow him

to seek counsel. See Matter of Michel, 21 I&N Dec. 1101 (BIA 1998).

d. In Picca v. Mukasey, 512 F.3d 75 (2d Cir. 2008), the Second Circuit held

that, under 8 C.F.R. § 1240.10(a), an IJ has an affirmative duty to notify

the alien in proceedings that free legal services are available, and to

ascertain that the alien has received a list of such services. No showing

of prejudice is required for remand if an IJ fails to comply with 8 C.F.R.

§ 1240.10(a). Id. at 79. In addition, the mailing of a list of free legal

service providers to an alien does not satisfy 8 C.F.R. § 1240.10(a), as
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“it is the IJ who must advise immigrants of the availability of free legal

services,” and “appending a list of legal service organizations to a Notice

to Appear cannot substitute for the requirement that the IJ ascertain that

the respondent has received a list of such programs.” Id.

e. In Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008), the Ninth

Circuit ruled that, for a waiver of counsel to be valid, “an IJ must

generally: (1) inquire specifically as to whether petitioner wishes to

continue without a lawyer; and (2) receive a knowing and voluntary

affirmative response.”

4. Prompt initiation of removal. Section 239(d)(1) provides that in the case of an

alien who is convicted of an offense which makes the alien deportable, the

Attorney General shall begin any removal proceeding as expeditiously as

possible after the date of the conviction. However, section 239(d)(2) provides

that section 239(d)(1) shall not be construed to create any substantive or

procedural right or benefit that is legally enforceable by any party against the

U.S. or its agencies or officers or any other person.

5. Termination of parole. The Board held that exclusion proceedings could not

be instituted against a paroled alien who is entitled by regulation to written

notice of the termination of parole until the alien receives such written notice. 

Matter of O, 16 I&N Dec. 344 (BIA 1977). No definition of the term “parole”

is contained in the Act, the regulations, or any judicial or administrative

decision. Id. At the time this decision was made, it appears that the

regulations provided for written notice to all paroled aliens. The current

regulations provide for termination of parole as follows:

a. Automatic termination under 8 C.F.R. § 212.5(e)(1)(i) & (ii). Parole is

automatically terminated without written notice:

(1) Upon the paroled alien’s departure from the U.S., or

(2) At the expiration of the time for which parole was authorized.

b. Termination on notice under 8 C.F.R. § 212.5(e)(2). In all cases not

covered above, parole must be terminated upon written notice to the

alien:

(1) Upon accomplishment of the purpose for which parole was

authorized has been accomplished (apparently upon the happening

of an event rather than upon the expiration of a period of time), or

(2) When the DD or Chief Patrol Agent in charge of the area where the

alien is located determines that neither humanitarian reasons nor
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public benefit warrants the continued presence of the alien in the

U.S.

(3) However, 8 C.F.R. § 212.5(e)(2)(i) provides that when a charging

document is served on the alien, the charging document will

constitute written notice of termination of parole, unless otherwise

specified.

(4) 8 C.F.R. § 212.5(e)(2)(ii) also provides that an alien granted parole

into the United States after enactment of the Immigration Reform

and Control Act of 1986 (“IRCA”) for other than the specific

purpose of applying for adjustment of status under section 245A of

the Act shall not be permitted to avail himself of the privilege of

adjustment thereunder. Failure to abide by this provision through

making such an application will subject the alien to termination of

parole status and institutions of proceedings under sections 235 and

236 (should read 239 and 240) without the written notice of

termination required by 8 C.F.R. § 212.5(e)(2)(i).

B. Service of the NTA

1. Section 239(a)(1) provides that in removal proceedings under section 240,

written notice (the NTA) shall be given in person to the alien or, if personal

service is not practicable, through service by mail to the alien or the alien’s

counsel of record.

2. Persons confined. 8 C.F.R. § 103.5a(c)(2)(i) provides that if a person is

confined in a penal or mental institution or hospital and is competent to

understand the nature of the proceedings initiated against him, service shall be

made both on him and the person in charge of the institution or hospital. If the

confined person is not competent to understand, service shall be made only on

the person in charge of the institution or hospital and such service will be

deemed service on the confined person.

3. Incompetents and minors. 8 C.F.R. § 103.5a(c)(2)(ii) provides that in case of

mental incompetency, whether or not confined in an institution, and in the

case of a minor under 14 years of age, service shall be made upon the person

with whom the incompetent or minor resides. Whenever possible, service

shall also be made on the near relative, guardian, committee, or friend. 

Nolasco v. Holder, 637 F.3d 159 (2d Cir. 2011).

a. The Board has reaffirmed that service on an adult is only required when

the minor is under 14 years of age. Matter of Cubor-Cruz, 25 I&N Dec.

470 (BIA 2011).
page 73 of 365

b. When a minor is detained by the Service, his residence is the particular

setting in which he is detained because that setting is the alien’s actual

dwelling place. Matter of Amaya, 21 I&N Dec. 583 (BIA 1996).

Therefore, service of an OSC was held to be properly made on the

director of the facility in which the minor is detained. Id.

c. A minor respondent, who could not be expected to attend immigration

proceedings on her own, was properly notified of her hearing, through

proper mailing of a Notice to Appear (Form I-862) to the last address

provided by her parent, with whom she was residing. Matter of GomezGomez, 23 I&N Dec. 522 (BIA 2002). Although the headnote states that

the NTA was served by mail, the decision indicates it was personally

served and the notice of the hearing was served by mail.

d. The regulations governing service of a NTA on a minor respondent do

not explicitly require service on the parent or parents in all

circumstances. Matter of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA

2002). If a minor respondent’s parents are not present in the U.S., service

on an uncle or other near relative accompanying the child may suffice. Id

However, when it appears that the minor child will be residing with her

parents in the U.S., the regulation requires service on the parents,

whenever possible, in addition to service that may be made on an

accompanying adult or more distant relative. Id. Therefore, removal

proceedings against a minor under 14 years of age were properly

terminated because service of the NTA failed to meet the requirements

of 8 C.F.R. § 103.5a(c)(2)(ii), as it was served only on a person

identified as the respondent’s uncle, and no effort was made to serve the

notice on the respondent’s parents, who apparently live in the U.S. Id.

(1) Note: The Ninth Circuit has held that when the Government

releases a minor alien into an adult’s custody pursuant to its

juvenile release and notice regulations, it must serve notice of the

alien’s rights and responsibilities upon that adult if the alien is

under 18. Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir.

2004); but see Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA

2011). 

(2) Note: The Second Circuit has held that when DHS fails to properly

serve the NTA pursuant to 8 C.F.R. § 103.5a(c)(2)(ii), that failure

implicates a minor’s fundamental rights only where the minor was

prevented from receiving notice of the NTA and a meaningful

opportunity to participate in the minor’s removal proceedings.

Nolasco v. Holder, 637 F.3d 159 (2d Cir. 2011).
page 74 of 365

4. Section 239(c) provides that service by mail of the NTA shall be sufficient if

there is proof of attempted delivery to the last address provided by the alien in

accordance with section 239(a)(1)(F).

5. The violation of former 8 C.F.R. § 242.1(c) which requires that the contents of

an Order to Show Cause (“OSC”) be explained to an alien under certain

circumstances when the OSC is served, does not necessarily result in prejudice

to the alien. Matter of Hernandez, 21 I&N Dec. 224 (BIA 1996). The

explanation requirement of the regulation is not jurisdictional. Id. at 226. As

long as the statutory requirements regarding the OSC and notice of deportation

proceedings are satisfied and the alien appears for the scheduled hearing,

service of the OSC without explanation of its contents by INS is sufficient to

confer the IJ with jurisdiction over the alien. Id. Where an alien raises the

issue of violation of the explanation requirements of the regulation and the IJ

finds that the alien was prejudiced by such violation, the IJ, where possible,

can and should take corrective action short of termination of the proceedings.

Id. at 228.

C. Cancellation of the NTA, motions to dismiss and remand, and termination by the IJ

1. Cancellation of the NTA

a. 8 C.F.R. § 239.2(a) provides that any officer authorized by 8 C.F.R. §

239.1(a) to issue a NTA may cancel such notice prior to jurisdiction

vesting with the IJ provided the officer is satisfied that:

(1) The respondent is a national of the U.S.;

(2) The respondent is not deportable or inadmissible under

immigration laws;

(3) The respondent is deceased;

(4) The respondent is not in the U.S.;

(5) The NTA was issued for the respondent’s failure to file a timely

petition as required by section 216(c) of the Act, but the failure to

file was excused in accordance with section 216(d)(2)(B) of the

Act;

(6) The NTA was improvidently issued; or

(7) Circumstances of the case have changed after the NTA was issued

to such an extent that continuation is no longer in the best interest

of the government.
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b. A decision by the INS to institute removal or other proceedings, or to

cancel a NTA or other charging document before jurisdiction vests with

the IJ, involves the exercise of prosecutorial discretion and is not a

decision that the IJ or the Board may review. Matter of G-N-C-, 22 I&N

Dec. 281 (BIA 1998).

2. Motion to dismiss. 8 C.F.R. § 1239.2(c) provides that after commencement of

proceedings under 8 C.F.R. § 1003.14, the Service may move for dismissal of

the matter on the grounds set forth above. Dismissal of the matter shall be

without prejudice to the alien or the Service.

a. Once the charging document is filed with the Immigration Court and

jurisdiction is vested in the IJ, the Service may move to dismiss the

proceedings, but it may not simply cancel the charging document. 

Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998).

b. The IJ is not required to terminate proceedings upon the Service’s

invocation of prosecutorial discretion but rather must adjudicate the

motion on the merits. Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998).

3. Motion for remand. 8 C.F.R. § 1239.2(d) provides that after commencement

of the hearing, the Service may move for remand of the matter to district

jurisdiction on the ground that the foreign relations of the U.S. are involved

and require further consideration. Remand of the matter shall be without

prejudice to the alien or the Service.

4. Termination by IJ. 8 C.F.R. § 1239.2(f) provides that an IJ may terminate

removal proceedings to permit the alien to proceed to a final hearing on a

pending application or petition for naturalization when the alien has

established prima facie eligibility for naturalization and the matter involves

exceptionally appealing or humanitarian factors; in every other case, the

removal hearing shall be completed as promptly as possible notwithstanding

the pendency of an application for naturalization during any state of the

proceedings.

a. The Board held that: (1) because the Board and the IJs lack jurisdiction

to adjudicate applications for naturalization, removal proceedings may

only be terminated pursuant to 8 C.F.R. § 1239.2(f) where DHS has

presented an affirmative communication attesting to an alien’s prima

facie eligibility for naturalization; and (2) an adjudication by DHS on the

merits of an alien’s naturalization application while removal proceedings

are pending is not an affirmative communication of the alien’s prima

facie eligibility for naturalization that would permit termination of

proceedings under 8 C.F.R. § 1239.2(f). Matter of Acosta Hidalgo, 24

I&N Dec. 103 (BIA 2007). But see Perriello v. Napolitano, 579 F.3d 135

(2d Cir. 2009).
page 76 of 365

D. Hearing in removal proceedings

1. Section 240(a)(1) provides that an IJ shall conduct proceedings for deciding

the inadmissibility or deportability of an alien.

2. Charges. Section 240(a)(2) provides that an alien placed in removal

proceedings may be charged with any applicable ground of inadmissibility

under section 212(a) or any applicable ground of deportability under section

237(a).

3. Exclusive procedures. Section 240(a)(3) provides that, unless otherwise

specified in the Act, removal proceedings under section 240 shall be the sole

and exclusive procedure for determining whether an alien may be admitted to

the U.S. or, if the alien has been so admitted, removed from the U.S. 

However, nothing in section 240(a)(3) shall affect proceedings conducted

pursuant to section 238 (expedited removal).

4. Authority of IJ. Section 240(b)(1) provides that the IJ shall administer oaths,

receive evidence, and interrogate, examine, and cross-examine the alien and

any witnesses. The IJ may issue subpoenas for the attendance of witnesses

and presentation of evidence. The IJ shall have authority (under regulations

prescribed by the Attorney General) to sanction by civil money penalty any

action (or inaction) in contempt of the IJ’s proper exercise of authority.

a. For information regarding subpoenas, see 8 C.F.R. § 1287.4.

b. Regulations regarding contempt power have yet to be enacted.

c. The IJ has authority to set filing deadlines for applications and related

documents and an application or document that is not filed within the

time established by the IJ may be deemed waived. 8 C.F.R. §

1003.31(c). Where an application is timely filed but related documents

are not timely filed, the proper course for the IJ is to deem the alien’s

opportunity to file these documents waived and to determine what effect

the failure to present them had on his ability to meet his burden of

establishing that he is eligible for the relief sought. Matter of InterianoRosa, 25 I&N Dec. 264 (BIA 2010). The regulations do not permit an IJ

to deem a timely filed application abandoned for failure to file

supplemental documents within a specified time. Id. 

5. Form of proceeding. Section 240(b)(2)(A) provides that the proceeding may

take place in person, where agreed upon by the parties in the absence of the

alien, through video conference, or through telephone conference. However,

section 240(b)(2)(B) provides that an evidentiary hearing on the merits may

only be conducted through a telephone conference with the consent of the
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alien involved after the alien has been advised of the right to proceed in person

or through video conference.

6. Presence of alien. Section 240(b)(3) provides that if it is impracticable by

reason of an alien’s mental incompetency for the alien to be present at the

proceeding, the Attorney General shall prescribe safeguards to protect the

rights and privileges of the alien. See Matter of M-A-M-, 25 I&N Dec. 474

(BIA 2011).

7. Alien’s rights in proceeding. Section 240(b)(4) provides that in proceedings

under section 240, under regulations of the Attorney General, the alien shall

have the privilege of being represented, at no expense to the Government, by

counsel of the alien’s choosing who is authorized to practice in such

proceedings, the alien shall have a reasonable opportunity to examine the

evidence against the alien, to present evidence on the alien’s own behalf, and

to cross-examine witnesses presented by the Government but these rights shall

not entitle the alien to examine such national security information as the

Government may proffer in opposition to the alien’s admission to the U.S. or

to an application by the alien for discretionary relief.

8. Record. Section 240(b)(4)(C) provides that a complete record shall be kept of

all testimony and evidence produced at the hearing.

9. Pleading by respondent. 8 C.F.R. § 1240.10(c) provides that the IJ shall

require the respondent to plead to the NTA by stating whether he admits or

denies the factual allegations and his removability under the charges contained

in the NTA.

a. If the respondent admits the factual allegations and his removability

under the charges and the IJ is satisfied that no issue of law or fact

remain, the IJ may determine that removability as charged has been

established by the admissions of the respondent. 8 C.F.R. § 1240.10(c).

b. The IJ shall not accept an admission of removability from an

unrepresented respondent who is incompetent or under the age of 18 and

is not accompanied by an attorney or legal representative, a near relative,

legal guardian, or friend; nor from an officer of an institution in which a

respondent is an inmate or patient. When the IJ does not accept an

admission of removability, he shall direct a hearing on the issues. 8

C.F.R. § 1240.10(c).

(1) The Board established standards regarding incompetency in

removal proceedings in Matter of M-A-M-, 25 I&N Dec. 474 (BIA

2011). The Board held that aliens in proceedings are presumed to

be competent and that, “[a]bsent indicia of mental incompetency,

an Immigration Judge is under no obligation to analyze an alien’s
page 78 of 365

competency.” Id. at 477. The Board established that the test for

determining whether an alien is competent to participate in

immigration proceedings is (1) whether he or she has a rational and

factual understanding of the nature and object of the proceedings,

(2) whether he or she can consult with the attorney or

representative if there is one, and (3) whether he or she has a

reasonable opportunity to examine and present evidence and crossexamine witnesses. Id. at 479. “When there are indicia of

incompetency, an Immigration Judge must take measures to

determine whether a respondent is competent to participate in

proceedings.” Id. at 480. The IJ may do this by modifying the

questions posed, asking about medications, arranging for a mental

competency evaluation, permitting a family member to assist the

respondent, or manage cases to facilitate the respondent’s ability to

obtain treatment or representation. Id. at 480-81. If the IJ

determines that the respondent lacks sufficient competency to

proceed with the hearing, the IJ shall determine which safeguards

are appropriate. Id. at 481-82.

(2) Minors. Although an IJ could not accept an admission to a charge

of deportability from an unaccompanied and unrepresented minor,

the Board held that an IJ is not precluded from accepting a minor's

admissions of factual allegations, which may properly form the

sole basis of a finding that such a minor is deportable. Matter of

Amaya, 21 I&N Dec. 583 (BIA 1996). However, when an

unaccompanied and unrepresented minor admits to the factual

allegations made against him, the IJ must take into consideration

the minor’s age and pro se status in determining whether the

minor’s testimony is reliable and whether he understands the facts

that are admitted so that his deportability is established by clear,

convincing, and unequivocal evidence. Id.

(3) The Immigration and Naturalization Service met its burden of

establishing a minor respondent’s deportability for entry without

inspection by clear, unequivocal, and convincing evidence, where

(1) a Record of Deportable Alien (Form I-213) was submitted,

documenting the respondent’s identity and alienage; (2) the

respondent, who failed without good cause to appear at his

deportation hearing, made no challenge to the admissibility of the

Form I-213; and (3) there were no grounds for a finding that the

admission of the Form I-213 would be fundamentally unfair. 

Matter of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999).

10. Country of removal
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a. In general. The term “country” means a foreign place with “territory” in

a geographical sense and a “government” in the sense of a political

organization exercising power over people subject to its jurisdiction.

Matter of Linnas, 19 I&N Dec. 302 (BIA 1985). Therefore, an alien may

not designate an office of his government that is within the U.S. Id.

b. Arriving aliens

(1) Section 241(b)(1)(A) of the Act provides that an alien who arrives

at the U.S. and against whom removal proceedings were initiated at

the time of arrival shall be removed to the country in which the

alien boarded the vessel or aircraft on which the alien arrived in the

U.S.

(2) Section 241(b)(1)(B) of the Act provides that if the alien boarded

the vessel or aircraft in a foreign territory contiguous to the U.S.,

an island adjacent to the U.S., or an island adjacent to a foreign

territory contiguous to the U.S., and the alien is not a native,

citizen, subject, or national of, or does not reside in, the territory or

island, removal shall be to the country in which the alien boarded

the vessel that transported the alien to the territory or island.

(3) Section 241(b)(1)(C) of the Act provides that if the government of

the country designated in sections 241(b)(1)(A) or (B) is unwilling

to accept the alien into its territory, removal shall be to the

following countries, as directed by the Attorney General:

(a) The country of which the alien is a citizen, subject, or

national;

(b) The country in which the alien was born;

(c) The country in which the alien has a residence;

(d) A country with a government that will accept the alien if

removal to each country above is impracticable, inadvisable,

or impossible.

c. All other aliens

(1) Section 241(b)(2)(A) of the Act provides that an alien who has

been ordered removed and who is not an arriving alien (section

241(b)(1)) may designate one country to which he wants to be

removed and the Attorney General shall remove the alien to the

country designated.
page 80 of 365

(2) 8 C.F.R. § 1240.10(f) provides that the IJ shall notify the alien that

if he is finally ordered removed, the country of removal will in the

first instance be directed pursuant to section 241(b) to the country

designated by the alien, unless section 241(b)(2)(C) applies, and

shall afford him the opportunity then and there to make such

designation.

(3) Section 241(b)(2)(B) of the Act provides that an alien may

designate a foreign territory contiguous to the U.S., an adjacent

island, or an island adjacent to a foreign territory contiguous to the

U.S. only if the alien is a native, citizen, subject, or national of, or

has resided in, that designated territory or island.

(4) Section 241(b)(2)(E) permits the Attorney General to remove an

alien to any of the following countries:

(a) The country from which the alien was admitted to the United

States;

(b) The country in which is located the foreign port from which

the alien left for the United States or for a foreign territory

contiguous to the United States;

(c) A country in which the alien resided before the alien entered

the country from which the alien entered the United States;

(d) The country in which the alien was born;

(e) The country that had sovereignty over the alien’s birthplace

when the alien was born;

(f) The country in which the alien’s birthplace is located when

the alien is ordered removed;

(g) If impracticable, inadvisable or impossible to remove the

alien to these countries, another country whose government

will accept the alien into that country.

(h) Note: The Supreme Court has held that section 241(b)(2)(E)

permits an alien to be removed to a country without advance

consent of that country’s government, except as provided in

section 241(b)(2)(E)(vii). Jama v. ICE, 543 U.S. 335 (2005).

d. Foreign contiguous territory and adjacent islands. Foreign contiguous

territory is, of course, Canada and Mexico. The term “adjacent islands”

(defined in section 101(b)(5) of the Act) includes:
page 81 of 365

(1) Saint Pierre

(2) Miquelon

(3) Cuba

(4) the Dominican Republic

(5) Haiti

(6) Bermuda

(7) the Bahamas

(8) Barbados

(9) Jamaica

(10) the Windward & Leeward Islands

(11) Trinidad

(12) Martinique

(13) other British, French, & Netherlands territory in or bordering on

the Caribbean Sea.

11. Motion to Continue

a. In Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), the Board

articulated five factors that an IJ should consider when determining

whether to continue proceedings to afford the respondent an opportunity

to apply for adjustment of status premised on a pending family-based

visa petition. The factors are: “(1) the DHS response to the motion; (2)

whether the underlying visa petition is prima facie approvable; (3) the

respondent’s statutory eligibility for adjustment of status; (4) whether the

respondent’s application for adjustment [of status] merits a favorable

exercise of discretion; and (5) the reason for the continuance and other

procedural factors.” 24 I&N Dec. at 790. The Board made clear that

where DHS does not oppose the continuance, “the proceedings

ordinarily should be continued by the Immigration Judge in the absence

of unusual, clearly identified, and supported reasons for not doing so.”

Id. at 791. In holding that the decision to grant a continuance was a

discretionary one, the Board noted that “[f]actors relevant to determining

whether a favorable exercise of discretion is warranted include, but are
page 82 of 365

not limited to, the existence of family ties in the United States; the length

of the respondent's residence in the United States; the hardship of

traveling abroad; and the respondent's immigration history, including any

preconceived intent to immigrate at the time of entering as a

nonimmigrant.” Id. at 793.

b. In Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) the Board articulated

the factors an IJ should consider in determining whether good cause

exists to continue removal proceedings to allow adjudication of an

employment-based visa petition or labor certification. In determining

whether good cause exists to continue proceedings, the IJ should

determine the alien’s place in the adjustment of status process and

consider and balance the factors identified in Matter of Hashmi, 24 I&N

Dec. 785 (BIA 2009) (see above) and any other relevant considerations.

Rajah, 25 I&N Dec. at 130. An alien’s unopposed motion to continue

ongoing removal proceedings to await adjudication of a pending

employment-based visa petition should generally be granted if approval

of the visa petition would render him prima facie eligible for adjustment

of status. Id. However, the pendency of a labor certification is generally

not sufficient to warrant a grant of a continuance. Id. at 137.

12. Decision. Section 240(c)(1)(A) provides that at the conclusion of the

proceeding the IJ shall decide whether an alien is removable from the U.S. 

The IJ’s determination shall be based only on the evidence produced at the

hearing. Section 240(c)(1)(B) provides that if a medical officer or civil

surgeon or board of medical officers has certified under section 232(b) that an

alien has a disease, illness, or addiction which would make the alien

inadmissible under section 212(a)(1), the IJ’s decision shall be based solely

upon such certification.

a. A summary decision pursuant to 8 C.F.R. § 1240.12(b) may properly be

issued by an IJ in removal proceedings in lieu of an oral or written

decision only when the respondent has expressly admitted to both the

factual allegations and the charges of removability; and, either the

respondent’s ineligibility for any form of relief is clearly established on

the pleadings; or, after appropriate advisement of and opportunity to

apply for any form of relief for which it appears from the pleadings that

he or she may be eligible, the respondent chooses not to apply for relief

or applies only for, and is granted, the relief of voluntary departure. 

Matter of A-P-, 22 I&N Dec. 468 (BIA 1999).

b. A remand of the record for issuance of a full and separate decision

apprising the parties of the legal basis of the IJ’s decision is not required

under Matter of A-P-, 22 I&N Dec. 468 (BIA 1999), where the

respondent had notice of the factual and legal basis of the decision and

had an adequate opportunity to contest them on appeal, the uncontested
page 83 of 365

facts established at the hearing are dispositive of the issues raised on

appeal, and the hearing was fundamentally fair. Matter of RodriguezCarillo, 22 I&N Dec. 1031 (BIA 1999).

c. Section 240(c)(5) provides that if the IJ decides that the alien is

removable and orders the alien to be removed, the IJ shall inform the

alien of the right to appeal that decision and of the consequences for

failure to depart under the order of removal, including civil and criminal

penalties.

d. The Board has held that, if an IJ includes an attachment to a decision,

“particular care must be taken to insure that a complete record is

preserved.” Matter of Kelly, 24 I&N Dec. 446, 447 (BIA 2008). In

particular, (1) the attachment should include the respondent’s name and

A-number, and the decision date; (2) the attachment should be appended

to the written memorandum summarizing the oral decision (which

should reflect that there is an attachment); (3) the IJ should state on the

record at the time of the oral decision that he or she will append an

attachment to the decision; (4) a copy of the attachment should be

provided to the parties; and (5) the parties should be given the

opportunity to make any objections to the use of an attachment. Id.

Finally, the Board noted that “it is the [IJ’s] responsibility to insure that

the decision in the record is complete.” Id.

E. Failure to appear - in absentia hearings

1. INTRODUCTION - The Due Process Clause protects aliens in removal

proceedings and includes the right to a full and fair hearing. Notice of

proceedings is an important component of any legal process. An elementary

and fundamental requirement of due process in any proceeding which is to be

accorded finality is notice reasonably calculated, under all the circumstances,

to apprize interested parties of the pendency of the action and afford them an

opportunity to present their objections. The notice must be of such nature as

reasonably to convey the required information, and it must afford a reasonable

time for those interested to make their appearance. Matter of M-D-, 23 I&N

Dec. 540 (BIA 2002) (quoting Landon v. Plasencia, 459 U.S. 21 (1982)).

a. Personal service clearly is adequate notice. Matter of M-D-, 23 I&N

Dec. 540 (BIA 2002).

2. History lesson - Prior to 1992, the Act provided only that “the alien shall be

given notice, reasonable under all the circumstances, of the nature of the

charges against him and of the time and place at which the proceedings will be

held.” Former INA § 242(b)(1).
page 84 of 365

a. The Act was amended in 1990 by adding section 242B, governing

deportation proceedings. Effective as to any Order to Show Cause

served after June 13, 1992, section 242B stated that with regard to both

an Order to Show Cause and a notice of the time and place of

proceedings, “written notice shall be given in person to the alien (or, if

personal service is not practicable, such notice shall be given by certified

mail to the alien or to the alien’s counsel of record, if any).” Therefore,

at that time, certified mail was made the required method of notification

if personal service was not practicable (and it remains so for deportation

proceedings). See 8 C.F.R. § 1003.13.

b. The Board determined that under former section 242B(a)(1) of the Act

(effective on June 13, 1992), if personal service is not practicable, an

OSC must be served by certified mail and the certified mail receipt must

be signed by the respondent or a responsible person at the respondent’s

address. Matter of Grijalva, 21 I&N Dec. 27 (BIA 1995) (citing Matter

of Huete, 20 I&N Dec. 250 (BIA 1991), superseded by statute as stated

in Nibagwire v. Gonzales, 450 F.3d 153 (4th Cir. 2006), for a similar

requirement prior to the enactment of section 242B(a)(1)). With regard

to the notice of hearing under section 242B(a)(2), Matter of Grijalva

found no requirement that the certified mail return receipt be signed, so

long as there was proof of attempted delivery. It also established a

presumption that the Postal Service has, in fact, attempted to deliver

certified mail, even in cases where the item is returned unclaimed. Thus,

in deportation proceedings under section 242B, attempted delivery by

certified mail is sufficient to meet the notice requirements of the Act. Id. 

Furthermore, the presumption of effective service can only be overcome

by the affirmative defense of nondelivery or improper delivery by the

Postal Service if the respondent presents substantial and probative

evidence demonstrating that there was improper delivery. Id. 

3. PRESENT LAW - The Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IIRIRA”) changed the procedures with regard to

notification of proceedings. In removal proceedings, the statute now provides

that “written notice . . . shall be given in person to the alien (or, if personal

service is not practicable, through service by mail to the alien or to the alien’s

counsel of record, if any).” Section 239(c) of the Act provides that service by

mail under this section shall be sufficient if there is proof of attempted

delivery to the last address provided by the alien in accordance with section

239(a)(1)(F) of the Act. No particular method of mailing is specified.

Although the Act no longer requires that notice be sent by certified mail,

service by certified mail is not expressly disapproved. The applicable

regulations at 8 C.F.R. § 1003.13 state, in part: “Service means physically

presenting or mailing a document to the appropriate party or parties; except

that an Order to Show Cause or Notice of Deportation Hearing shall be served

in person to the alien, or by certified mail to the alien or the alien’s attorney
page 85 of 365

and a Notice to Appear or Notice of Removal Hearing shall be served to the

alien in person, or if personal service is not practicable, shall be served by

regular mail to the alien or the alien’s attorney of record.”

a. Under section 240(b)(5)(A) of the Act and 8 C.F.R. § 1003.26(c), an IJ

is required to order an alien removed in absentia if the Service

establishes by clear, unequivocal, and convincing evidence that the alien

is removable and that written notice of the time and place of proceedings

and of the consequences of failure to appear were provided to the alien

or to counsel of record. Written notice is considered sufficient if it was

provided at the most recent address given by the alien.

b. In Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008), the Ninth Circuit

held that an alien “who arrives late for his immigration hearing, but

while the IJ is still in the courtroom, has not failed to appear for that

hearing.” The petitioner, who had been ordered removed in absentia,

was scheduled for a 9:00 hearing but arrived at 11:00, at which time the

IJ was “still on the bench.”

c. In Hamazaspyan v. Holder, 590 F.3d 744 (9th Cir. 2009), the Ninth

Circuit held that, under INA section 239, it is insufficient to serve a

hearing notice on an alien, but not the alien’s counsel of record. The

court further held that an in absentia order of removal must be rescinded

if the government sent notice of the time and place of the removal

hearing by mail to an address provided by the alien but, (1) there is not

proof the alien received actual notice; (2) the alien proved he is

represented by counsel who filed a notice of appearance as counsel of

record with the immigration court before such notice was sent; and (3)

the government did not prove that it sent notice to the alien’s counsel of

record. 

d. In Matter of Munoz-Santos, 20 I&N Dec. 205 (BIA 1990), the Board

found that notice of the hearing was properly served by regular mail

where the regulation did not require any particular form of service and

notice was sent to the last known address provided by the unrepresented

respondent. On the other hand, in Matter of Peugnet, 20 I&N Dec. 233

(BIA 1991), the Board held that a deportation hearing could not proceed

in absentia where the Order to Show Cause was sent to the alien’s

address by regular mail, but the alien failed to appear for the hearing or

to acknowledge that she received the OSC, which was not re-served by

personal service, as required by 8 C.F.R. § 242.1(c) (1990). NOTE: The

regulations no longer require personal service if the alien is served by

regular mail and fails to appear.

(1) That decision also adopted, for purposes of deportation

proceedings, a definition of personal service that was applicable to
page 86 of 365

proceedings before Service officers under 8 C.F.R. §

103.5a(a)(2)(iv) (1990), which included certified mail as a form of

personal service. The Board stated that it has not adopted this

definition for purposes of removal proceedings.

e. In removal proceedings, the Board held that an in absentia order may

only be entered where the alien has received, or can be charged with

receiving, a Notice to Appear informing him or her of the consequences

of failing to provide a current address under section 239(a)(1)(F) of the

Act. Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). In that case the

issue turned on whether the NTA, which was sent to the respondent by

certified mail and returned unclaimed, constituted constructive notice

where the address was obtained from an asylum application that was

several years old. The Board concluded that it was improper to rely on

an old address obtained in another proceeding, and that it was

inappropriate to enter an in absentia order of removal where the record

reflected that the alien did not receive, or could not be charged with

receiving, the NTA.

f. In Matter of M-D-, 23 I&N Dec. 540 (BIA 2002), the Board

distinguished Matter of G-Y-R- as follows: “Unlike the present case,

Matter of G-Y-R- involved a situation where there was a dispute over

whether the notice had been mailed to the correct address. Matter of GY-R-, however, is instructive for making the point that the alien need not

personally receive, read, and understand the NTA for the notice

requirements to be satisfied. As we noted in Matter of G-Y-R-, ‘An alien

can, in certain circumstances, be properly charged with receiving notice,

even though he or she did not personally see the mailed document. If, for

example, the Notice to Appear reaches the correct address but does not

reach the alien through some failure in the internal workings of the

household, the alien can be charged with receiving proper notice, and

proper notice will have been effected.’ The case before us is similar to

Matter of G-Y-R- in that the respondent was served by certified mail at

an address obtained from an asylum application. Importantly, however,

there is no dispute here regarding the correct address. The respondent

had provided the address only a few weeks before the hearing, and he

admits that he was living at that address when the Notice to Appear was

mailed. Unlike our decision in Matter of G-Y-R-, the issue in the

present case is whether the respondent can be charged with receiving the

Notice to Appear.” 23 I&N Dec. at 545 (emphasis in original).

g. The statute only generally provides for the use of “service by mail.”

Although the Board interpreted the statute to allow service by regular

mail, it did not read the regulation at 8 C.F.R. § 3.13 (now 8 C.F.R. §

1003.13) as conferring on an alien a right to require the use of regular

mail instead of certified mail. The regulation provides for the use of
page 87 of 365

regular mail as a convenience to the Service, not as a mandate to use

regular mail instead of certified mail. The Service and the Immigration

Courts routinely use certified mail instead of regular mail in many

instances, although the degree of the use of certified mail varies from

region to region. The Board declined to hold that the use of certified

mail in such instances is not allowed by the language of 8 C.F.R. § 3.13

(now 8 C.F.R. § 1003.13) when the Act does not specify one form of

mailing over another. Matter of M-D-, 23 I&N Dec. 540 (BIA 2002).

h. As a general matter, the law recognizes a presumption that “[a] letter

properly addressed, stamped and mailed is presumed to have been duly

delivered to the addressee.” Federal Deposit Ins. Corp. v. Schaffer, 731

F.2d 1134, 1137 n.6 (4th Cir. 1984) (quoting C. McCormick,

McCormick’s Handbook of the Law of Evidence § 343 (1972)).

Moreover, the presumption is especially strong when the delivery is by

certified mail, and clear and convincing evidence is required to

overcome the presumption. Id. at 1137 n.6. Certified mail has always

carried inherent reliability, and its use by other Federal Government

agencies has been upheld. E.g., Patmon and Young Professional Corp. v.

Commissioner, 55 F.3d 216 (6th Cir. 1995); Eschweiler v. United States,

946 F.2d 45 (7th Cir. 1991). Proof that the notice was sent by certified

mail creates a rebuttable presumption of adequate notice, which an alien

may overcome through evidence that the Post Office had not attempted

delivery or had conducted delivery improperly. Fuentes-Argueta v. INS,

101 F.3d 867 (2d Cir. 1996); Arrieta v. INS, 117 F.3d 429, 431 (9th Cir.

1997) (holding that certified mail is sufficient even if no one signs for

it.) It is not reasonable to allow the respondent to defeat service by

neglecting or refusing to collect his mail. However, the Second, Third,

Eighth, and Ninth Circuits have held that where a respondent actually

initiates a proceeding to obtain a benefit, appears at an earlier hearing,

and has no motive to avoid the hearing, a sworn affidavit from the

respondent that neither she nor a responsible party residing at her

address received the notice should ordinarily be sufficient to rebut the

presumption of delivery and entitle the respondent to an evidentiary

hearing to consider the veracity of her allegations. Lopes v. Mukasey,

517 F.3d 156 (2d Cir. 2008); Santana Gonzalez v. Att’y Gen., 506 F.3d

274 (3d Cir. 2007); Ghounem v. Ashcroft, 378 F.3d 740 (8th Cir. 2004);

Salta v. INS, 314 F.3d 1076 (9th Cir. 2002). The Ninth Circuit went

further in Sembiring v. Gonzales, 499 F.3d 981, 989 (9th Cir. 2007),

holding that “a sworn affidavit was not required to establish that [the

petitioner] did not receive notice,” given that “[t]he test for whether an

alien has produced sufficient evidence to overcome the presumption of

effective service by regular mail is practical and commonsensical rather

than rigidly formulaic.” 
page 88 of 365

i. In Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008), the Board held that

when an NTA or hearing notice is properly addressed and sent by regular

mail according to normal office procedures, there is a presumption of

delivery, but it is weaker than the presumption that applies to documents

sent by certified mail. The Board stated that when an IJ adjudicates a

motion to reopen to rescind an in absentia order of removal based on a

claim that a notice sent by regular mail to the most recent address

provided was not received, all relevant evidence submitted to overcome

the weaker presumption of delivery must be considered. Id. In the case

at issue, the Board held that the respondent overcame the presumption of

delivery of a hearing notice that was sent by regular mail where he

submitted affidavits indicating that he did not receive the notice, had

previously filed an asylum application and appeared for his first removal

hearing, and exercised due diligence in promptly obtaining counsel and

requesting reopening of the proceedings. Id.

j. In Matter of C-R-C-, 24 I&N Dec. 677 (BIA 2008), the Board elaborated

on the standard it announced in Matter of M-R-A-. In Matter of C-R-C-,

the Board remanded from the denial of the respondent's motion to reopen

to rescind an in absentia order in a case where the respondent failed to

appear at an Immigration Court hearing after a Notice to Appear was

sent by regular mail. Id. In ruling that the respondent overcame the lower

presumption of delivery of Matter of M-R-A-, the Board cited the

following facts as relevant: (1) “the respondent submitted an affidavit

alleging that he did not receive the Notice to Appear;” (2) the respondent

had affirmatively applied for asylum with DHS, “thereby initiating a

proceeding to obtain a benefit, which would give him an incentive to

appear;” (3) the respondent had “complied with his Fingerprint

Notification;” and (4) “the respondent immediately sought assistance

from his current counsel after receiving the Immigration Judge’s in

absentia order of removal, and he promptly filed a motion to reopen.” Id.

at 680.

4. Section 240(b)(5)(A) provides that any alien who, after written notice required

under section 239(a)(1) or (2) has been provided to the alien or alien's counsel

of record, does not attend a proceeding under section 240, shall be ordered

removed in absentia if the Service establishes by clear, unequivocal, and

convincing evidence that the written notice was so provided and that the alien

is removable. The written notice by the Attorney General shall be considered

sufficient if provided at the most recent address provided under section

239(a)(1)(F). Section 240(b)(5)(B) provides that no written notice shall be

required under section 240(b)(5)(A) if the alien has failed to provide the

address required under section 239(a)(1)(F).

a. When an alien fails to appear at removal proceedings for which notice of

the hearing was served by mail, an in absentia order may only be entered
page 89 of 365

where the alien has received, or can be charged with receiving, a Notice

to Appear informing the alien of the statutory address obligations

associated with removal proceedings and of the consequences of failing

to provide a current address, pursuant to section 239(a)(1)(F) of the Act. 

Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). Entry of an in absentia

order of removal is inappropriate where the record reflects that the alien

did not receive, or could not be charged with receiving, the Notice to

Appear that was served by certified mail at an address obtained from

documents filed with the Service several years earlier. Id.

b. A minor respondent, who could not be expected to attend immigration

proceedings on her own, was properly notified of her hearing, through

proper mailing of a Notice to Appear (Form I-862) to the last address

provided by her parent, with whom she was residing. Matter of GomezGomez, 23 I&N Dec. 522 (BIA 2002). Although the headnote states that

the NTA was served by mail, the decision indicates it was personally

served and the notice of the hearing was served by mail. The Board also

stated, “we believe it is implicit in the statute and regulations dealing

with notice that an adult relative who receives notice on behalf of a

minor alien bears the responsibility to assure that the minor appears for

the hearing, as required.” Id. at 528.

5. Recission of a removal order rendered in absentia

a. An in absentia order of removal may be rescinded only at any time upon

a showing of lack of notice or that the alien was in Federal or State

custody. A motion to reopen and rescind an in absentia order may be

filed within 180 days after the date of the order of removal if the alien

demonstrates that the failure to appear was because of exceptional

circumstances. INA § 240(b)(5)(C)(i). See pages 348-350 below for

discussion of motions to reopen and rescind in absentia order. 

6. Aliens in contiguous territory. Section 240(b)(5)(E) provide that the notice and

in absentia provisions of section 240 shall apply to all aliens placed in

proceedings under section 240, including any alien who remains in a

contiguous foreign territory pursuant to section 235(b)(2)(C). This provision

appears to change the conclusion reached in Matter of Sanchez, 21 I&N Dec.

444 (BIA 1996).

7. Limitation on discretionary relief for failure to appear. Section 240(b)(7)

provides that any alien against whom a final order of removal is entered in

absentia and who, at the time of the notice described in section 239(a)(1) or

(2) was provided oral notice, either in the alien’s native language or in another

language the alien understands, of the time and place of the proceedings and

of the consequences of failing, other than because of exceptional

circumstances, to attend a proceeding under section 240, shall not be eligible
page 90 of 365

for relief under section 240A, 240B, 245, 248, or 249 for a period of 10 years

after the date of the entry of the final order of removal.

F. Stipulated removal

1. The Attorney General shall provide by regulation for the entry by an IJ of an

order of removal stipulated to by the alien (or the alien's representative) and

the service. INA § 240(d). A stipulated order shall constitute a conclusive

determination of the alien's removability from the U.S. Id.

G. Methods of removal not involving an IJ

1. Expedited removal of aliens convicted of aggravated felonies. Section 238(b)

of the Act provides for the removal of aliens who are not LPRs and who have

been convicted of aggravated felonies.

a. The procedure for such removal is set forth in 8 C.F.R. § 1238.1.

2. Expedited removal of other aliens. 8 C.F.R. 1235.3(b)(1) provides that the

expedited removal procedure shall apply to the following classes of aliens:

a. Arriving aliens inadmissible under section 212(a)(6)(C) and section

212(a)(7) except for citizens of Cuba arriving at a U.S. port-of-entry by

aircraft.

b. Subject to designation by the Commissioner, aliens arriving, attempting

to enter, or who have entered the U.S. without being admitted or paroled

by an immigration officer who have not established to the satisfaction of

the immigration officer that they have been physically present in the U.S.

for 2 years immediately prior to the determination of inadmissibility.

(1) On November 13, 2002, the Commissioner designated all aliens

who arrive in the U.S. on or after November 13, 2002 by sea who

are not admitted or paroled and who have not been physically

present in the U.S. for 2 years immediately prior to the

determination of inadmissibility by an immigration officer. The

Commissioner’s designation does not apply to aliens who arrive at

U.S. ports-of-entry, alien crewmen or stowaways, and Cuban

citizens or nationals who arrive by sea.

3. Reinstatement of removal orders against aliens illegally reentering. Section

241(a)(5) of the Act provides that if the Attorney General finds that an alien

has reentered the U.S. illegally after having been removed or having departed

voluntarily under an order of removal, the prior order of removal is reinstated

from its original date and is not subject to being reopened or reviewed, the
page 91 of 365

alien is not eligible for and may not apply for any relief under the Act, and the

alien shall be removed under the prior order at any time after reentry.

a. The procedure for reinstatement of removal orders and the exception for

withholding of removal are discussed in 8 C.F.R. § 1241.8.

b. Immigration judges and the Board lack jurisdiction to review a decision

of the Service to reinstate a prior order of removal pursuant to section

241(a)(5) of the Act. Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998).

c. The Supreme Court held that section 241(a)(5) of the Act applies to

aliens who reentered the United States before the effective date of

IIRIRA and does not retroactively affect any right of, or impose any

burden, on such aliens. Fernandez-Vargas v. Gonzales, 548 U.S. 30

(2006).

d. An IJ has no authority to reinstate a prior order of deportation or removal

pursuant to section 241(a)(5), and an alien subject to reinstatement of an

order under section 241(a)(5) has no right to a hearing before an IJ. 

Matter of W-C-B-, 24 I&N Dec. 118 (BIA 2007). The IJ may properly

terminate proceedings as improvidently begun where the respondent is

subject to reinstatement of a prior order. Id. 

e. Knowingly using another person’s passport to reenter the United States

following removal constitutes illegal reentry into the United States for

purposes of reinstatement of the prior order of removal. Beekhan v.

Holder, 634 F.3d 723 (2d Cir. 2011). 

4. Judicial removal. Section 238(c) of the Act provides that a U.S. District 2nd

Judge shall have jurisdiction to enter a judicial order of removal at the time of

sentencing an alien who is deportable, if such an order has been requested by

the U.S. Attorney with the concurrence of the Commissioner and if the court

chooses to exercise such jurisdiction.

a. The procedure for judicial removal is set forth in section 238(c) (2) of 2nd

the Act.

VII. Relief from Removal

A. Background and Security Investigations in Proceedings Before an IJ

1. In no case shall an IJ grant an application for immigration relief that is subject

to the conduct of identity, law enforcement, or security investigations or

examinations until the Department of Homeland Security has reported to the

IJ that the appropriate investigations or examinations have been completed
page 92 of 365

and are current and the Department has reported any relevant information

from the investigations or examinations to the IJ. 8 C.F.R. § 1003.47(g).

2. Covered forms of relief:

a. Asylum under section 208 of the Act;

b. Adjustment of status to that of a lawful permanent resident under section

209 or 245 of the Act, or any other provision of law;

c. Waiver of inadmissibility or deportability under section 209(c), 212, or

237 of the Act, or any other provision of law;

d. Permanent resident status on a conditional basis or removal of the

conditional bases of permanent resident status under sections 216 or

216A of the Act, or any other provision of law;

e. Cancellation of removal or suspension of deportation under section

240A or former section 244 of the Act, or any other provision of law;

f. Relief from removal under former section 212(c) of the Act;

g. Withholding of removal under section 241(b)(3) of the Act or under the

United Nations Convention Against Torture;

h. Registry under section 249 of the Act;

i. Conditional grants relating to the above, such as for applications seeking

asylum pursuant to section 207(a)(5) of the Act, or cancellation of

removal in light of section 240A(e) of the Act.

3. Voluntary Departure is not subject to the background investigations and

security checks requirement. However, the Department of Homeland Security

may seek a continuance in order to complete pending investigations and the IJ

may grant additional time in the exercise of discretion.

B. Voluntary departure - Section 240B

1. Introduction. Voluntary departure is a relief from removal which may be

granted by both the INS and by IJs. If granted, voluntary departure allows the

respondent to depart the U.S. at his own expense and, if he departs within the

time allowed, he is not considered to have been removed. An alien departing

voluntarily may travel to any country of his choice. It is not necessary that he

go to the country designated for removal.
page 93 of 365

2. Supreme Court decision. In Dada v. Mukasey, 554 U.S. 1, 5 (2008), the

Supreme Court ruled that, when an alien is granted voluntary departure and

then seeks to file a motion to reopen, “the alien must be permitted to

withdraw, unilaterally, a voluntary departure request before expiration of the

departure period, without regard to the underlying merits of the motion to

reopen.” Here, two days before his voluntary departure period expired, the

petitioner filed a motion to reopen (along with a motion to withdraw his

request for voluntary departure), with the intention of applying for adjustment

of status. The Board denied the motion to reopen, on the grounds that the

petitioner had overstayed his voluntary departure period and thus was

statutorily barred from adjustment of status. The Court rejected the

government’s argument that, in the Court’s words, “by requesting and

obtaining permission to voluntarily depart, the alien knowingly surrenders the

opportunity to seek reopening.” Id. at 14. The Court also rejected the

petitioner’s argument that the voluntary departure period should be tolled

while the motion to reopen is pending. 

3. Motion to reopen or reconsider. Effective January 20, 2009, a grant of

voluntary departure is automatically terminated upon the filing of a postdecision motion to reopen or reconsider with the Immigration Court or the

Board within the voluntary departure period, or upon the filing of a petition

for review in a federal court of appeals. 8 C.F.R. §§ 1240.26(b)(3)(iii),

(c)(3)(iii), (e)(1), and (i). Although the alien no longer has the benefit of

voluntary departure with the filing of a post-decision motion to reopen or

reconsider or a petition for review, the alien is also not subject to the penalties

for failure to depart voluntarily under INA section 240B(d). 8 C.F.R.

§§ 1240.26(b)(3)(iii), (e)(1), and (i).

4. Pre-Conclusion Voluntary Departure - Section 240B(a)

a. In general. The Attorney General may permit an alien voluntarily to

depart the U.S. at the alien’s own expense in lieu of being subject to

proceedings under section 240 or prior to the completion of such

proceedings, if the alien is not deportable under section 237(a)(2)(A)(iii)

[convicted of an aggravated felony] or section 237(a)(4)(B) [engaged in

terrorist activities]. INA § 240B(a)(1).

b. When to apply. 8 C.F.R. § 1240.26(b)(1)(i)(A) states that the request for

voluntary departure must be made prior to or at the master calendar

hearing at which the case is initially calendared for a merits hearing.

(1) In Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000), the Board

stated in footnote 2: “We are cognizant that, although the

respondent clearly indicated his interest in voluntary departure at

his first appearance before the Immigration Judge, he did not

actually request that relief until his hearing reconvened at a later
page 94 of 365

date. We do not find this circumstance problematic, however,

because the rescheduling was treated by the parties and the

Immigration Judge as a continuation of the master calendar

hearing.”

c. Voluntary Departure Period. Permission to depart voluntarily under

section 240B(a)(1) shall not be valid for a period exceeding 120 days.

INA § 240B(a)(2).

d. Bond. The Attorney General may require an alien permitted to depart

voluntarily under section 240B(a)(1) to post a voluntary departure bond,

to be surrendered upon proof that the alien has departed the U.S. within

the time specified. Section 240B(a)(3). However, a bond is not

required. Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000).

e. Applicability to aliens arriving in the U.S. In the case of an alien who is

arriving in the U.S. and with respect to whom proceedings under section

240 are (or would otherwise be) initiated at the time of such alien’s

arrival, section 240B(a)(1) regarding voluntary departure shall not apply.

INA § 240B(a)(4). However, this shall not be construed as preventing

such an alien from withdrawing the application for admission in

accordance with section 235(a)(4). Id.

f. Effective April 1, 1997, an alien may apply for voluntary departure

either in lieu of being subject to removal proceedings or before the

conclusion of the proceedings under section 240B(a) of the Act, or at the

conclusion of the proceedings under section 240B(b) of the Act. An

alien who applies for voluntary departure at the conclusion of removal

proceedings pursuant to section 240B(b) of the Act must demonstrate,

inter alia, both good moral character for a period of 5 years preceding the

application for relief and the financial means to depart the United States,

but an alien who applies before the conclusion of the proceedings

pursuant to section 240B(a) is not subject to those requirements. Matter

of Arguelles, 22 I&N Dec. 811 (BIA 1999).

g. Although an alien who applies for voluntary departure under either

section 240B(a) or 240B(b) of the Act must establish that a favorable

exercise of discretion is warranted upon consideration of the factors set

forth in Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), modified on

other grounds by Matter of Torre, 19 I&N Dec. 18 (BIA 1984), which

governed applications for voluntary departure under the former section

244(e) of the Act, the IJ has broader authority to grant voluntary

departure in discretion before the conclusion of removal proceedings

under section 240B(a) than under section 240B(b) or the former section

244(e). Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999). An alien

who had been granted voluntary departure five times pursuant to former
page 95 of 365

section 244(e) of the Act and had returned each time without inspection

was eligible to apply for voluntary departure in removal proceedings

under section 240B, because the restrictions on eligibility of section

240B(c), relating to aliens who return after having previously been

granted voluntary departure, only apply if relief was granted under

section 240B. Matter of Arguelles, 22 I&N Dec. 811 (BIA 1999).

h. Appeal. In order to qualify for voluntary departure under section

240B(a), an alien must waive appeal of all issues. 8 C.F.R.

§ 1240.26(b)(1)(i)(D). See also Matter of Ocampo, 22 I&N Dec. 1301

(BIA 2000).

(1) It is necessary for IJs to advise respondents, on the record, that the

right to appeal must be waived as a precondition to receiving

voluntary departure under section 240B(a). The only instance in

which an IJ might safely forego such an oral notification is when

the record contains a written stipulation or comparable

documentary evidence wherein the respondent, or the respondent’s

counsel, expressly waives appeal as part of establishing that all the

regulatory requirements for this form of voluntary departure have

been satisfied. Accordingly, the Board holds that, without an oral

notice regarding the waiver of the right to appeal or a written

attestation reflecting the respondent’s awareness of this

requirement, an IJ lacks the authority to grant voluntary departure

prior to the completion of proceedings under section 240B(a) of the

Act. Matter of Ocampo, 22 I&N Dec. 1301 (BIA 2000).

i. Additional advisals. Effective January 20, 2009, the IJ must advise the

respondent that if he or she files a post-decision motion to reopen or

reconsider during the voluntary departure period: (1) the grant of

voluntary departure is terminated automatically; (2) the alternate order of

removal takes effect immediately; and (3) the penalties for failure to

depart voluntarily under section 240B(d) shall not apply. 8 C.F.R.

§ 1240.26(b)(3)(iii). 

5. Voluntary Departure at the conclusion of proceedings - Section 240B(b)

a. Under section 240B(b)(1), the Attorney General may permit an alien

voluntarily to depart the U.S. at the alien's own expense if, at the

conclusion of a proceeding under section 240, the IJ enters an order

granting voluntary departure in lieu of removal and finds that:

(1) the alien has been physically present in the U.S. for a period of at

least one year immediately preceding the date the notice to appear

was served under section 239(a) [INA § 240B(b)(1)(A)];
page 96 of 365

(2) the alien is, and has been, a person of good moral character for at

least 5 years immediately preceding the alien’s application for

voluntary departure [INA § 240B(b)(1)(B)];

(3) the alien is not deportable under section 237(a)(2)(A)(iii)

[convicted of an aggravated felony] or section 237(a)(4) [security

violations, terrorist activities, etc.] [INA § 240B(b)(1)(C)]; and

(4) the alien has established by clear and convincing evidence that the

alien has the means to depart the U.S. and intends to do so [INA §

240(b)(1)(D)].

b. The Eleventh Circuit held that an alien who has not sought preconclusion voluntary departure may, for the first time, request postconclusion voluntary departure at the end of a removal proceeding, after

the IJ issues an oral decision ordering the alien's removal from the

United States. Alvarado v. Att’y Gen., 610 F.3d 1311, 1318 (11th Cir.

2010). 

c. Bond. An alien permitted to deport voluntarily under section 240B(b)(1)

shall be required to post a voluntary departure bond, in an amount

necessary to ensure that the alien will depart, but in no case less than

$500, to be surrendered upon proof that the alien has departed the U.S.

within the time specified. INA § 240B(b)(3); 8 C.F.R. § 1240.26(c)(3). 

Effective January 20, 2009, if an alien does not post the bond within the

time required, the alien is still obligated to depart within the period

allowed and is not exempted from the consequences for failure to depart. 

8 C.F.R. § 1240.26(c)(4). This overrules Matter of Diaz-Ruacho, 24

I&N Dec. 47 (BIA 2006). In addition, the failure to post bond may be

considered as a negative discretionary factor with respect to any

discretionary form of relief. If the alien waived appeal of the IJ’s

decision, the failure to timely post the voluntary departure bond means

that the alternative order of removal takes effect immediately, except

that an alien granted post-conclusion voluntary departure will not be

deemed to have departed under an order of removal if the alien: (1)

departs the U.S. no more than 25 days after the failure to post bond; (2)

provides to DHS such evidence of departure as the Immigration and

Customs Enforcement (“ICE”) Field Office Director may require; and

(3) provides evidence DHS deems sufficient that the alien remains

outside the U.S. 8 C.F.R. § 1240.26(c)(4).

(1) The voluntary departure regulations at 8 C.F.R. § 1240.26(c)(4) do

not apply retroactively. Matter of Velasco, 25 I&N Dec. 143 (BIA

2009). If an IJ granted voluntary departure before January 20, 2009

and the alien failed to post the voluntary departure bond required

by INA section 240B(b)(3), the former regulatory scheme, as
page 97 of 365

interpreted in Matter of Diaz-Ruacho, remains applicable and the

penalties imposed by section 240B(d)(1) for failure to depart

within the voluntary departure period do not apply. Id. at 146.

Under Matter of Diaz-Ruacho, the Board held that an alien who

has not timely posted the required voluntary departure bond is not

subject to the penalties in INA section 240B(d)(1) because the

statute stated that the voluntary departure order automatically

vacated upon failure to post the bond within the required period of

time. 24 I&N Dec. at 51.

d. Opportunity to decline. Effective January 20, 2009, upon setting the

bond and conditions of voluntary departure, the IJ must provide the alien

the opportunity to accept the grant of voluntary departure or to decline

voluntary departure if he or she is unwilling to accept the amount of the

bond or other conditions. 8 C.F.R. § 1240.26(c)(3).

e. Aliens not eligible. The Attorney General shall not permit an alien to

depart voluntarily under section 240B(b)(1) if the alien was previously

permitted to so depart after having been found inadmissible under

section 212(a)(6)(A) [present in the U.S. without being admitted or

paroled, or who arrived in the U.S. at any time or place other than as

designated by the Attorney General]. INA § 240B(c).

f. Advisals. Effective January 20, 2009, before granting post-conclusion

voluntary departure, the IJ must advise the alien: (1) of any conditions

the IJ set beyond those specifically enumerated by regulation; and (2) of

the bond amount that will be set and the duty to post bond with the ICE

Field Office Director within 5 business days of the order granting

voluntary departure. Upon granting post-conclusion voluntary departure,

the IJ must advise the alien: (1) of the requirement to provide to the

Board, within 30 days of filing an appeal, sufficient proof of having

posted the voluntary departure bond with the Department of Homeland

Security; (2) that the Board will not reinstate the voluntary departure

period in its final order if the alien does not submit timely proof to the

Board that the voluntary departure bond has been posted; and (3) that if

the alien files a post-decision motion to reopen or reconsider during the

voluntary departure period, the grant of voluntary departure is terminated

automatically and the alternate order of removal takes effect

immediately. 8 C.F.R. § 1240.26(c)(3). See Matter of Gamero, 25 I&N

Dec. 164 (BIA 2010) (remanding the record where IJ failed to provide

all the advisals and alien failed to submit timely proof to the Board that

bond had been posted and ordering grant of new period of voluntary

departure with all required advisals).

6. Additional conditions. The Attorney General may by regulation limit

eligibility for voluntary departure under section 240B for any class or classes
page 98 of 365

of aliens and no court may review any such regulation. INA § 240B(e). The

IJ may require that the alien be detained until his departure from the U.S. as a

condition of a grant of voluntary departure. Matter of M-A-S-, 24 I&N Dec.

762 (BIA 2009).

7. Civil penalty for failure to depart. If an alien is permitted to depart voluntarily

under section 240B and fails to depart the U.S. within the time specified, the

alien shall be subject to a civil penalty of not less than $1,000 and not more

than $5,000, and be ineligible for a period of 10 years for any further relief

under sections 240B (voluntary departure), 240A (cancellation of removal),

245 (adjustment of status), 248 (change of nonimmigrant classification), and

249 (registry). The order permitting the alien to depart voluntarily shall

inform the alien of these penalties. INA § 240B(d). Effective January 20,

2009, there is a rebuttable presumption of a civil penalty of $3,000 if the alien

fails to depart within the voluntary departure period, but the IJ may set a

higher or lower amount as permitted by section 240B(d)(A)(A). At the time

of granting voluntary departure, the IJ shall advise the alien of the amount of

the civil penalty. 8 C.F.R. § 1240.26(j).

a. The Board of Immigration Appeals lacks authority to apply an

“exceptional circumstances” or other general equitable exception to the

penalty provisions for failure to depart within the time period afforded

for voluntary departure under section 240B(d)(1). Matter of Zmijewska,

24 I&N Dec. 87 (BIA 2007). An alien has not voluntarily failed to

depart the United States under section 240B(d)(1) of the Act when the

alien, through no fault of his or her own, was unaware of the voluntary

departure order or was physically unable to depart within the time

granted. Id.

8. Extension of time to depart. Authority to extend the time within which to

depart specified initially by an IJ or the Board is within the sole jurisdiction of

the DD. 8 C.F.R. § 1240.26(f).

9. Reinstatement of Voluntary Departure. An IJ or the Board may reinstate

voluntary departure in a removal proceeding that has been reopened for a

purpose other than solely making an application for voluntary departure if

reopening was granted prior to the expiration of the original period of

voluntary departure. 8 C.F.R. § 1240.26(h).

a. In no event can the total period of time, including any extension, exceed

120 days or 60 days as set forth in section 240B of the Act. 8 C.F.R. §

1240.26(h).

C. Withdrawal of application for admission
page 99 of 365

1. History lesson. - Until the passage of the IIRIRA, neither the statute nor the

regulations directly provided for the withdrawal of an application for

admission. The Board held that an IJ, in his discretion, may permit an alien in

exclusion proceedings to withdraw his application for admission. An alien

could not withdraw his application as a matter of right. Matter of VargasMolina, 13 I&N Dec. 651 (BIA 1971). He had to satisfy the IJ that “justice

would best be served” by permitting the withdrawal. Id. In order to withdraw

an application for admission, the alien had to demonstrate that he had the

intent to depart the U.S., he had the means to depart immediately, and that

justice would be ill served if an order of exclusion was entered. Matter of

Gutierrez, 19 I&N Dec. 562 (BIA 1988). The Board held that it was never

contemplated that withdrawal of an application for admission would become a

nonstatutory form of “relief” for which an applicant could apply after

excludability was determined. Id. at 565. Therefore, the Board held that once

an exclusion hearing has been conducted and the issue of excludability has

been resolved, the applicant should only be allowed to withdraw his application for admission with the concurrence of the INS. Id. By directing an

applicant for admission to return to Mexico after being served with a form I122, INS in effect consented to the alien’s withdrawal of that application when

the alien elected not to appear before an IJ to pursue his application for

admission. Matter of Sanchez, 21 I&N Dec. 444 (BIA 1996). If an IJ allowed

an alien to withdraw his application for admission, the IJ could not set the

time limit within which the alien was allowed to depart. Matter of Lepofsky,

14 I&N Dec. 718 (BIA 1974). To do so would infringe on the DD's parole

power. Id. The time and conditions of departure were up to the DD. Id.

2. Withdrawal of application for admission under IIRIRA

a. An alien applying for admission may, in the discretion of the Attorney

General and at any time, be permitted to withdraw the application for

admission and depart immediately from the U.S. INA § 235(a)(4).

b. 8 C.F.R. § 1235.4 provides that the Attorney General may, in the

exercise of discretion, permit any alien applicant for admission to

withdraw his application for admission in lieu of removal proceedings

under section 240 or expedited removal under section 235(b)(1).

c. 8 C.F.R. § 1235.4 also provides that the alien’s decision to withdraw the

application for admission must be made voluntarily, but that shall not be

construed to give an alien the right to withdraw the application for

admission.

d. 8 C.F.R. § 1235.4 also provides that an alien permitted to withdraw an

application for admission should normally remain in carrier or Service

custody pending departure, unless the DD determines that parole of the

alien is warranted.
page 100 of 365

e. 8 C.F.R. § 1235.4(b) also provides that permission to withdraw an

application for admission should not normally be granted unless the

alien intends and is able to depart the United States immediately.

D. Citizenship

1. Derivative Citizenship. The Board ruled that, to obtain derivative citizenship

under former section 321(a), an alien must acquire LPR status “while he or

she is under 18 years of age.” Matter of Nwozuzu, 24 I&N Dec. 609 (BIA

2008).

 

a. A child who has satisfied the statutory conditions of former section

321(a), before the age of 18 years has acquired U.S. citizenship,

regardless of whether the naturalized parent acquired legal custody of the

child before or after the naturalization. Matter of Baires, 24 I&N Dec.

467 (BIA 2008). 

b. Under former section 321(a) of the Act, a child remains “under the age

of eighteen years” up until the time of his birth on his eighteenth

birthday. Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir. 2010) (holding that

if the alien was born in the evening and his mother was naturalized in the

morning on the same day 18 years later, he was still under the age of

eighteen years when his mother was naturalized).

c. A person born outside the United States cannot derive United States

citizenship under section 320(a) by virtue of his or her relationship to a

nonadoptive stepparent. Matter of Guzman-Gomez, 24 I&N Dec. 824

(BIA 2009).

2. Legitimation. Under Jamaican law, the sole means of legitimation of a child

born out of wedlock is the marriage of the child’s natural parents. Matter of

Hines, 24 I&N Dec. 544 (BIA 2008). If an individual’s parents never marry,

paternity is not established “by legitimation” pursuant to former section

321(a)(3). Id.

E. Cancellation of removal for certain permanent residents under section 240A(a) and

for certain nonpermanent residents under section 240A(b)

1. Aliens ineligible for relief. Section 240A(c) provides that the provisions of

sections 240A(a) and 240A(b)(1) shall not apply to any of the following

aliens:

a. an alien who entered the U.S. as a crewman subsequent to June 30, 1964

[INA § 240A(c)(1)]; Matter of G-D-M-, 25 I&N Dec. 82 (BIA 2009);
page 101 of 365

b. an alien who was admitted to the U.S. as a nonimmigrant exchange alien

as defined in section 101(a)(15)(J), or has acquired the status of such a

nonimmigrant exchange alien after admission, in order to receive

graduate medical education or training, regardless of whether or not the

alien is subject to or has fulfilled the two-year foreign residence

requirement of section 212(e) [INA § 240A(c)(2)];

c. an alien who was admitted to the U.S. as a nonimmigrant exchange alien

as defined in section 101(a)(15)(J) or has acquired the status of such a

nonimmigrant exchange alien after admission other than to receive

graduate medical education or training, is subject to the two-year foreign

residence requirement of section 212(e), and has not fulfilled that

requirement or received a waiver thereof [INA § 240A(c)(3)];

d. an alien who is inadmissible under section 212(a)(3) [espionage,

sabotage, etc., terrorist activities, adverse foreign policy consequences,

immigrant membership in totalitarian party, participants in Nazi

persecutions or genocide], or deportable under section 237(a)(4)

[national security violations, terrorist activities, adverse foreign policy

consequences, assisted in Nazi persecution or engaged in genocide]

[INA § 240A(c)(4)];

e. an alien who is described in section 241(b)(3)(B)(i) [participated in the

persecution of others] [INA § 240A(c)(5)]; 

f. an alien whose removal has previously been cancelled under section

240A, whose deportation was suspended under (former) section 244(a),

or who has been granted relief under (former) section 212(c) as such

sections were in effect before the date of enactment of IIRIRA [INA §

240A(c)(6)].

2. Cancellation of Removal for Certain Permanent Residents, section 240A(a). 

The Attorney General may cancel removal in the case of an alien who is

inadmissible or deportable from the U.S. if the alien: (1) has been an alien

lawfully admitted for permanent residence for not less than 5 years, (2) has

resided in the U.S. continuously for 7 years after having been admitted in any

status, and (3) has not been convicted of any aggravated felony.

a. The period of an alien’s residence in the U.S. after admission as a

nonimmigrant may be considered in calculating the 7 years of

continuous residence required to establish eligibility for cancellation of

removal. Matter of Blancas, 23 I&N Dec. 458 (BIA 2002).

b. An alien in removal proceedings who at one time was a lawful

permanent resident and held that status for at least five years but who

later lost that status is no longer statutorily eligible for cancellation of
page 102 of 365

removal. Padilla-Romero v. Holder, 611 F.3d 1011 (9th Cir. 2010). The

Ninth Circuit also held that neither an approved I-130 nor a grant of

employment authorization confers admission status on an undocumented

alien for purposes of establishing 7 years’ continuous residence “after

having been admitted in any status” for purposes of section 240A(a)(2). 

See Vasquez de Alcantar v. Holder, 645 F.3d 1097 (9th Cir. 2011);

Guevara v. Holder, 649 F.3d 1086 (9th Cir. 2011).

c. An alien who acquired permanent resident status through fraud or

misrepresentation has never been “lawfully admitted for permanent

residence” and is therefore ineligible for cancellation of removal under

section 240A(a) of the Act. Matter of Koloamatangi, 23 I&N Dec. 548

(BIA 2003).

d. A parent’s lawful permanent resident status cannot be imputed to a child

for purposes of calculating the 5 years of lawful permanent residence

required for cancellation of removal. Matter of Escobar, 24 I&N Dec.

231 (BIA 2007). 

(1) The Ninth Circuit rejected the reasoning in Matter of Escobar, and

held that, for purposes of satisfying the five years of lawful

permanent residence required under section 240A(a)(1), a parent’s

status as a lawful permanent resident is imputed to the

unemancipated minor children residing with that parent. MercadoZazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009). 

e. A parent’s period of residence in the United States cannot be imputed to

a child for purposes of calculating the 7 years of continuous residence

required to establish eligibility for cancellation of removal under section

240A(a)(2). Matter of Ramirez-Vargas, 24 I&N Dec. 599 (BIA 2008);

Cervantes v. Holder; 597 F.3d 229, 236-37 (4th Cir. 2010) (rejecting

alien’s argument that parents’ residence should be imputed for purposes

of TPS eligibility); Deus v. Holder, 591 F.3d 807 (5th Cir. 2009);

Augustin v. Att’y Gen., 520 F.3d 264, 271 (3d Cir. 2008) (distinguishing

between statutory terms “domicile” and “residence”). But see MercadoZazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009) (finding that a parent’s

period of residence could be imputed to a minor child). 

3. Cancellation of removal and adjustment of status for certain nonpermanent

residents under section 240A(b)

a. History lesson - Prior to the IIRIRA, a comparable relief from

deportation existed in the form of suspension of deportation. In order to

qualify for this relief, an alien had to establish physical presence in the

U.S. for 7 years (3 years if a battered spouse or child and 10 years if

deportable under certain criminal grounds), good moral character for all
page 103 of 365

of that period, and that deportation would result in extreme or

exceptionally unusual hardship to the alien or to a qualifying relative

(exceptionally unusual hardship if subject to the 10 year statutory

period).

b. PRESENT LAW - Section 240A(b)(1). The Attorney General may

cancel removal in the case of an alien who is inadmissible or deportable

from the U.S. if the alien:

(1) has been physically present in the U.S. for a continuous period of

not less than 10 years immediately preceding the date of such

application; 

(a) Voluntary departure under the threat of deportation breaks an

alien’s continuous physical presence. Matter of RomalezAlcaide, 23 I&N Dec. 423 (BIA 2002). The Second Circuit

accorded deference to Matter of Romalez-Alcaide in finding

that an alien’s arrest and conviction for illegal entry, followed

by his departure to Mexico, interrupted his period of

continuous physical presence. Ascencio-Rodriguez v.

Holder, 595 F.3d 105 (2d Cir. 2010).

(b) The Eighth Circuit held that under the REAL ID Act, an IJ

can require an alien to corroborate his otherwise credible

testimony with further evidence as to his date of entry into

the United States. Sanchez-Velasco v. Holder, 593 F.3d 733

(8th Cir. 2010). The court held that the alien’s parents were

reasonably available to testify as to his entry date, even

though they feared being placed in removal proceedings. Id. 

(denying alien’s appeal of denial of his application for

cancellation of removal.)

(c) See pages 108-112 below for discussion of special rules

regarding continuous presence.

(2) has been a person of good moral character (“GMC”) during such

period; 

(3) has not been convicted of an offense under section 212(a)(2)

[CIMT; 2 or more offenses for which the aggregate sentences to

confinement actually imposed were 5 years or more; illicit

traffickers in controlled substances; prostitution and

commercialized vice; aliens involved in serious criminal activity

who have asserted immunity from prosecution] (This bar may not

be overcome by a waiver under section 212(h) of the Act. Matter

of Bustamante, 25 I&N Dec. 564 (BIA 2011)), section 237(a)(2)
page 104 of 365

[CIMT within 5 years of entry for which a sentence of one year or

longer may be imposed; 2 CIMTs not arising out of a single

scheme of criminal misconduct; aggravated felony; high speed

flight; controlled substances; firearms or destructive devices;

miscellaneous crimes; crimes of domestic, violence, stalking, and

crimes against children; violators of protection orders]; or section

237(a)(3) [failure to report change of address; failure to register or

falsification of documents; document fraud; falsely claiming U.S.

citizenship]; and 

(a) The Board held that an alien whose conviction precedes the

October 1, 1996, effective date of section 237(a)(2)(E) has

not been “convicted of an offense” under section 237(a)(2)(E)

and, therefore, is not barred by section 240A(b)(1)(C) from

establishing eligibility for cancellation of removal. Matter of

Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007).

(b) In Obi v. Holder, 558 F.3d 609 (7th Cir. 2009), the Seventh

Circuit upheld the IJ’s determination that the alien was barred

from cancellation of removal for nonpermanent residents

because his 1996 marriage fraud conviction rendered him

“convicted of an offense under . . . section 237(a)(3).” The

alien argued that he was eligible for relief because Congress

did not intend for the section 240A(b)(1)(C) bar to apply to

convictions preceding the effective date of IIRIRA (April 1,

1997). He relied on Landgraf v. USI Film Prods., 511 U.S.

244 (1994), which established a two-prong test for assessing

whether a law could be applied retroactively. Citing LaraRuiz v. INS, 241 F.3d 934, 945 (7th Cir. 2001), the court held

that Congress clearly intended to apply IIRIRA's cancellationof-removal provisions to all proceedings brought after April

1, 1997, regardless of when an alien committed a

disqualifying crime. 

(c) The Ninth Circuit held that the petty offense exception under

section 212(a)(2)(A)(ii) is not available with respect to a

conviction rendering an alien ineligible for cancellation of

removal under section 240A(b) because the petty offense

exception does not reference section 237(a)(2) or section

240A(b) and there is no other statutory basis for applying the

exception. Vasquez-Hernandez v. Holder, 590 F.3d 1053

(9th Cir. 2010). 

(4) establishes that removal would result in exceptional and extremely

unusual hardship to the alien’s spouse, parent or child, who is a
page 105 of 365

citizen of the U.S. or an alien lawfully admitted for permanent

residence.

(a) Stepparents and stepchildren. A stepchild who meets the

definition of a “child” under section 101(b)(1)(B) is a

qualifying relative for purposes of cancellation of removal

under section 240A(b)(1)(D). Matter of Portillo-Gutierrez, 25

I&N Dec. 148 (BIA 2009). A stepparent who meets the

definition of a “parent” under section 101(b)(2) is a

qualifying relative for purposes of cancellation of removal

under section 240A(b)(1)(D). Matter of Morales, 25 I&N

Dec. 186 (BIA 2010).

(b) To establish “exceptional and extremely unusual hardship”,

an applicant for cancellation of removal under section

240A(b) of the Act must demonstrate that his or her citizen or

lawful permanent resident spouse, parent, or child would

suffer hardship that is substantially beyond that which would

ordinarily be expected to result from the alien’s deportation,

but need not show that such hardship would be

“unconscionable.” Matter of Monreal, 23 I&N Dec. 56 (BIA

2001).

(c) Although many of the factors that were considered in

assessing “extreme hardship” for suspension of deportation

should also be considered in evaluating “exceptional and

extremely unusual hardship”, an applicant for cancellation of

removal must demonstrate hardship beyond that which has

historically been required in suspension of deportation cases

involving the “extreme hardship” standard. Matter of

Monreal, 23 I&N Dec. 56 (BIA 2001).

(d) In establishing eligibility for cancellation of removal, only

hardship to qualifying relatives, not to the applicant himself

or herself, may be considered, and hardship factors relating to

the applicant may be considered only insofar as they might

affect the hardship to a qualifying relative. Matter of

Monreal, 23 I&N Dec. 56 (BIA 2001).

(e) The Board found it appropriate and useful to look to the

factors considered in assessing “extreme hardship” for

purposes of suspension of deportation as set forth in Matter

of Anderson, 16 I&N Dec. 596 (BIA 1976), such as the age

of a respondent, both at the time of coming to the U.S. and at

the time of the application, family ties in the U.S. and abroad,

length of residence in the U.S., the health of the respondent
page 106 of 365

and qualifying family members, the political and economic

conditions in the country of return, the possibility of other

means of adjusting status in the U.S., the alien's involvement

and position in his or her community, and his or her

immigration history, but observed that some of the factors set

forth in that case may relate only to the applicant for relief

and those cannot be considered under the cancellation statute

where only hardship to qualifying relatives, and not to the

applicant, may be considered. Matter of Monreal, 23 I&N

Dec. 56, 63 (BIA 2001). Factors relating to the applicant can

only be considered insofar as they may affect the hardship to

a qualifying relative. Id. For cancellation of removal, the

Board would consider the ages, health, and circumstances of

qualifying lawful permanent resident and U.S. citizen

relatives. Id. The Board stated that an applicant who has

elderly parents in the U.S. who are solely dependent upon

him for support might have a strong case. Id. Another strong

applicant might have a qualifying child with very serious

health issues or compelling special needs in school. Id. The

Board said a lower standard of living or adverse country

conditions in the county of return are factors to consider only

insofar as they may affect a qualifying relative, but generally

will be insufficient in themselves to support a finding of

exceptional and extremely unusual hardship. Id. As with

extreme hardship, all hardship factors should be considered

in the aggregate when assessing exceptional and extremely

unusual hardship. Id. at 63-64. The Board also cited Matter

of Kao and Lin, 23 I&N Dec. 45 (BIA 2001) and Matter of

Pilch, 21 I&N Dec. 627 (BIA 1996).

(f) An unmarried mother of 2 U.S. citizen children (a 6 year old

and an 11 year old) did not establish that her children would

suffer exceptional and extremely unusual hardship upon her

removal to Mexico in spite of the poor economic conditions

and diminished educational opportunities in Mexico and the

fact that the respondent is unmarried and has no family in

Mexico to assist in her children’s adjustment to life there. 

Matter of Andazola, 23 I&N Dec. 319 (BIA 2002). In that

case, the Board stated, “In assessing hardship, we should not

consider the fact that the respondent’s extended family is (in

the U.S.) illegally, rather than in Mexico, as a factor that

weighs in her favor.” Id. at 323. The Board also noted that

the respondent and her children may face some special

difficulties in Mexico, because she is an unmarried mother

and may encounter some discrimination as such. Id. at 324.
page 107 of 365

(g) The Board distinguished Matter of Monreal, 23 I&N Dec. 56

(BIA 2001) and Matter of Andazola, 23 I&N Dec. 319 (BIA

2002) and granted cancellation of removal in Matter of

Recinas, 23 I&N Dec. 467 (BIA 2002). The factors

considered in assessing the hardship to the respondent’s

United States citizen children included the heavy burden

imposed on the respondent to provide the sole financial and

familial support for her six children if she is deported to

Mexico, the lack of any family in her native country, the

children’s unfamiliarity with the Spanish language, and the

unavailability of an alternative means of immigrating to this

country. Recinas, 23 I&N Dec. 467. The Board stated that

the hardship standard is not so restrictive that only a handful

of applicants, such as those who have a qualifying relative

with a serious medical condition, will qualify for relief. Id. at

470. However, the Board also stated, “We consider this case

to be on the outer limit of the narrow spectrum of cases in

which the exceptional and extremely unusual hardship

standard will be met.” Id.

(h) An unborn child is not a “child” under section 101(b)(1) for

purposes of acting as a qualifying relative for cancellation of

removal. Partap v. Holder, 603 F.3d 1173 (9th Cir. 2010). 

c. Special rule for battered spouse or child - Section 240A(b)(2). The

Attorney General may cancel removal in the case of an alien who is

inadmissible or deportable from the U.S. if the alien demonstrates that:

(1) the alien has been battered or subjected to extreme cruelty in the

U.S. by a spouse or parent who is a U.S. citizen or LPR (or is the

parent of a child of a U.S. citizen or LPR and the child has been

battered or subjected to extreme cruelty in the U.S. by such citizen

or permanent resident parent);

(a) In Lopez-Birrueta v. Holder, 633 F.3d 1211 (9th Cir. 2011),

the Ninth Circuit disagreed with the Board that the petitioner

failed to show that the beating of her two U.S. citizen

children by the children’s LPR father constituted battery for

purposes of VAWA special rule cancellation. The court

examined the definition of “battery or extreme cruelty” in 8

C.F.R. §§ 204.2(c)(1)(vi), (e)(1)(vi), noting that the sections

are identical but for the last sentence, depending on whether

the petitioner is a spouse (§ 204.2(c)) or a child (§ 204.2(e)).

After deciding that the regulatory definitions do not address

petitioner’s situation because 8 C.F.R. § 204.2(c)(1)(vi)

requires the abuse take place during the self-petitioner’s
page 108 of 365

marriage and 8 C.F.R. § 204.2(e)(1)(vi) applies to a petition

from a child, the court nonetheless concluded the Board

permissibly extended the use of the definitions. The court

held that the statute does not indicate that battery or extreme

cruelty is defined differently depending on the marital status

of the petitioner. 

(2) the alien has been physically present in the U.S. for a continuous

period of not less than 3 years immediately preceding the date of

such application;

(3) the alien has been a person of GMC during such period; 

(4) the alien is not inadmissible under sections 212(a)(2) or (3), is not

deportable under section 237(a)(I)(G) involving marriage fraud, or

sections 237(a)(2) through (4), and has not been convicted of an

aggravated felony; and 

(5) the removal would result in extreme hardship to the alien, the

alien's child or (in the case of an alien who is a child) to the alien's

parent.

(6) In acting on applications under this paragraph, the Attorney

General shall consider any credible evidence relevant to the

application. INA § 240A(b)(2). The determination of what

evidence is credible and the weight to be given that evidence shall

be within the sole discretion of the Attorney General. Id.

(7) As reflected by the plain language of the statute and legislative

history, a lawful permanent resident who qualifies as a battered

spouse may apply for cancellation of removal pursuant to section

240A(b)(2). Matter of A-M-, 25 I&N Dec. 66 (BIA 2009).

d. Adjustment of status of aliens whose removal is canceled. Section

240A(b)(3) provides that the Attorney General may adjust to the status

of an alien lawfully admitted for permanent residence any alien who the

Attorney General determines meets the requirements of sections

240A(b)(1) and 240A(b)(2). The number of adjustments shall not

exceed 4,000 for any fiscal year. The Attorney General shall record the

alien's lawful admission for permanent residence as of the date of the

Attorney General’s cancellation of removal or determination.

4. Special rules relating to continuous residence or physical presence - Section

240A(d)
page 109 of 365

a. Termination of continuous period. Pursuant to section 240A(d)(1) of the

Act, commonly known as the “stop-time” rule, any period of continuous

residence or continuous physical presence in the U.S. shall be deemed to

end when the alien is served a notice to appear under section 239(a) or

when the alien has committed an offense referred to in section 212(a)(2)

that renders the alien inadmissible to the U.S. under section 212(a)(2) or

removable from the U.S. under section 237(a)(2) or 237(a)(4), whichever

is earliest. INA § 240A(d)(1).

(1) Termination by service of Notice to Appear

(a) In a deportation case involving the respondent’s eligibility for

suspension of deportation, the Board found that the

continuous physical presence clock does not start anew after

the service of an Order to Show Cause so as to allow an alien

to accrue the time required to establish eligibility for

suspension of deportation after the service of an Order to

Show Cause. Matter of Mendoza-Sandino, 22 I&N Dec.

1236 (BIA 2000).

(2) Termination by commission of an offense

(a) The period of continuous residence required for relief under

section 240A(a) commences when the alien has been

admitted in any status, which includes admission as a

temporary resident. Matter of Perez, 22 I&N Dec. 689 (BIA

1999).

(b) Continuous residence or physical presence for cancellation of

removal purposes is deemed to end on the date that a

qualifying offense has been committed, even if the offense

was committed prior to the enactment of the IIRIRA of 1996.

Matter of Perez, 22 I&N Dec. 689 (BIA 1999), reaff’d Matter

of Robles, 24 I&N Dec. 22 (BIA 2006). See also Baraket v.

Holder, 632 F.3d 56 (2d Cir. 2011). But see Sinotes-Cruz v.

Gonzales, 468 F.3d 1190 (9th Cir. 2006); Bakarian v.

Mukasey, 541 F.3d 775 (7th Cir. 2008). An alien need not be

charged in the NTA with the alleged criminal conduct to

terminate the alien’s continuous residence. Matter of Jurado,

24 I&N Dec. 29 (BIA 2006).

(c) Pursuant to section 240A(d)(1) of the Act, an offense must be

one “referred to in section 212(a)(2)” of the Act to terminate

the period of continuous residence or continuous physical

presence required for cancellation of removal. Matter of

Campos-Torres, 22 I&N Dec. 1289 (BIA 2000). A firearms
page 110 of 365

offense that renders an alien removable under section

237(a)(2)(C) of the Act is not one “referred to in section

212(a)(2)” and thus does not stop the further accrual of

continuous residence or continuous physical presence for

purposes of establishing eligibility for cancellation of

removal. Id.

(d) An alien who has been convicted of a crime involving moral

turpitude that falls within the “petty offense” exception in

section 212(a)(2)(A)(ii)(II) of the Act is not ineligible for

cancellation of removal under section 240A(b)(1)(C) of the

Act because he “has not been convicted of an offense under

section 212(a)(2)” of the Act. Matter of Garcia-Hernandez,

23 I&N Dec. 590 (BIA 2003). Similarly, an alien’s

conviction for a crime involving moral turpitude does not

render him ineligible for cancellation of removal under

section 240A(b)(1)(C) if his crime is punishable by

imprisonment for a period of less than one year and qualifies

for the petty offense exception. Matter of Pedroza, 25 I&N

Dec. 312 (BIA 2010). 

(e) However, an alien who has been convicted of a crime

involving moral turpitude for which a sentence of a year or

longer may be imposed has been convicted of an offense

“described under” section 237(a)(2) and is therefore

ineligible for cancellation of removal under section

240A(b)(1)(C), regardless of the alien’s eligibility for the

petty offense exception under section 212(a)(2)(A)(ii)(II). 

Matter of Cortez, 25 I&N Dec. 301 (BIA 2010).

(f) A conviction for a single crime of moral turpitude that

qualifies as a “petty offense” conviction does not trigger the

“stop time” rule in section 240A(d)(1). Matter of Garcia, 25

I&N Dec. 332 (BIA 2010).

(g) An alien who has committed a crime involving moral

turpitude that falls within the “petty offense” exception is not

ineligible for cancellation of removal under section

240A(b)(1)(B) of the Act, because commission of a petty

offense does not bar the offender from establishing good

moral character under section 101(f)(3) of the Act. Matter of

Garcia-Hernandez, 23 I&N Dec. 590 (BIA 2003).

(h) A respondent, who was convicted of two misdemeanor

crimes involving moral turpitude is not precluded by the

provisions of section 240A(d)(1)(B) of the Act from
page 111 of 365

establishing the requisite 7 years of continuous residence for

cancellation of removal under section 240A(a)(2), because

his first crime, which qualifies as a “petty offense” under

section 212(a)(2)(A)(ii)(II) of the Act, did not render him

inadmissible, and he had accrued the requisite 7 years of

continuous residence before the second offense was

committed. Matter of Deanda-Romo, 23 I&N Dec. 597 (BIA

2003).

(i) Once an alien has been convicted of an offense that stops the

accrual of the 7-year period of continuous residence, that

residence cannot restart simply because the alien departs from

and then returns to the United States. Matter of Nelson, 25

I&N Dec. 410 (BIA 2011). Where the alien was convicted of

an offense that stopped the accrual of the 7-year period and

the charge of removability was based on the commission of

that offense, he could not restart his period of residence after

returning to the United States from a two-day trip to Canada.

See id. However, if the alien were not charged with

removability on the basis of the commission of his crime or if

he had received a waiver in relation to the offense, the

departure and return may have restarted his residence. See id.

at 414-15.

(3) Treatment of certain breaks in presence

(a) Section 240A(d)(2) of the Act is not the exclusive rule

respecting all departures. Matter of Avilez-Nava, 23 I&N

Dec. 799 (BIA 2005).

(b) A departure under threat of deportation constitutes a break in

the accrual of continuous physical presence. Matter of

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

(c) Mere refusal to admit at a land border of entry, without any

formal or documented process, does not interrupt continuous

physical presence. Matter of Avilez-Nava, 23 I&N Dec. 799

(BIA 2005). See Vasquez v. Holder, 635 F.3d 563 (1st Cir.

2011) (holding that the Board reasonably interpreted the Act

in finding that the expedited removal proceedings constituted

formal, documented process and, therefore, that those

proceedings interrupted the alien’s period of continuous

physical presence).

b. Section 240A(d)(2) provides that an alien has not established continuous

physical presence in the United States if the alien has departed from the
page 112 of 365

United States for any period in excess of 90 days or for any periods in

the aggregate exceeding 180 days. 

(1) This section does not mean that any departure of 90 days or less is

forgiven and an alien’s continuous physical presence is deemed to

end at the time the alien is removed or compelled to depart the U.S.

under threat of the institution of deportation or removal

proceedings (voluntary departure granted by the Service under

former section 242(b) of the Act), even if the absence is for only

one day. Matter of Romalez-Alcaide, 23 I&N Dec. 423 (BIA

2002).

(2) Where an alien departed the United States for a period less than

that specified in section 240A(d)(2) of the Act and unsuccessfully

attempted reentry at a port of entry before actually reentering,

physical presence continued to accrue for purposes of cancellation

of removal under section 240A(b)(1)(A) unless, during that

attempted reentry, the alien was formally excluded or made subject

to an order of expedited removal, was offered and accepted the

opportunity to withdraw an application for admission, or was

subjected to some other formal, documented process pursuant to

which the alien was determined to be inadmissible to the United

States. Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005).

(3) Service of the NTA or OSC stops time forever as compared to a

break in time under section 240A(d)(2) which is considered just a

break where time can be counted again after break. Matter of

Mendoza-Sandino, 22 I&N Dec. 1236 (BIA 2000).

c. Continuity not required because of honorable service in Armed Forces

and presence upon entry into service. The requirements of continuous

residence or continuous physical presence in the U.S. under sections

240A(a) and 240A(b) shall not apply to an alien who has served for a

minimum period of 24 months in an active-duty status in the Armed

Forces of the U.S. and, if separated from such service, was separated

under honorable conditions, and at the time of the alien's enlistment or

induction was in the U.S. INA § 240A(d)(3).

d. The Ninth Circuit held that erroneous advice from a third-party, who

stated that the Mexican aliens were eligible for lawful permanent

resident status, did not warrant equitable tolling of cancellation of

removal’s 10-year continuous-presence requirement, even though the

aliens were only one-month short of continuous presence requirement

and may not have come to the attention of immigration authorities if they

had not taken the third party’s bad advice. Hernandez v. Holder, 633

F.3d 1182 (9th Cir. 2011). 
page 113 of 365

5. Annual limitation. The Attorney General may not cancel the removal and

adjust the status under this section, nor suspend the deportation and adjust the

status under (former) section 244(a) of a total of more than 4,000 aliens in any

fiscal year. This applies regardless of when an alien applied for such

cancellation and adjustment and whether such alien had previously applied for

suspension under (former) section 244(a). INA § 240A(e).

6. In addition to satisfying the statutory eligibility requirements, an applicant for

cancellation of removal must establish that he or she merits such relief as a

matter of discretion. Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). The

general standards developed in Matter of Marin, 16 I&N Dec. 581 (BIA 1978),

clarified by Matter of Edwards, 20 I&N Dec. 191 (BIA 1990), for the exercise

of discretion under section 212(c) of the Act, which was the predecessor

provision to section 240A(a), are applicable to the exercise of discretion under

section 240A(a). Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998).

a. However, an applicant for cancellation of removal under section 240A(a)

of the Act need not meet a threshold test requiring a showing of “unusual

or outstanding equities” before a balancing of the favorable and adverse

factors of record will be made to determine whether relief should be

granted in the exercise of discretion. Matter of Sotelo, 23 I&N Dec. 201

(BIA 2001), clarifying Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). 

The Board stated that in any balancing test, various factors, whether

positive or negative, are accorded more weight than others according to

the specific facts of the individual case. Id. at 203. More serious

misconduct necessarily weighs more heavily against an exercise of

discretion than does less serious misconduct. Id. Therefore, an alien must

present “additional offsetting favorable evidence” to counterbalance an

adverse factor such as serious criminal activity. Id. In Matter of C-V-T-,

the Board questioned whether the requirement of presenting outstanding

or unusual equities had any continuing viability in view of the expanded

definition of the term “aggravated felony”. 22 I&N Dec. at 11 n.4. It

observed that in each of the precedent decisions where it required a

showing of “unusual or outstanding equities,” the alien would now be

considered ineligible for relief because of a conviction for an aggravated

felony, without any need to reach the issue of discretion. Id. In Matter of

Edwards, 20 I&N Dec. 191 (BIA 1990), the Board clarified that its

decision in Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988), did not

require an alien to satisfy a threshold test of showing “unusual or

outstanding equities” before it would apply a balancing test to consider

whether a favorable exercise of discretion is warranted. The Board

specifically stated that it found the reference to a threshold test in Matter

of Buscemi to be “misleading, as it might be read to imply that a full

examination of an alien’s equities can somehow be pretermitted” and

emphasized that a “complete review of the favorable factors” in the case
page 114 of 365

is required. 20 I&N Dec. at 196 n.3. Consistent with the clarifying

statements in Matter of Edwards, 20 I&N Dec. at 196, the Board

reiterated that it will not apply a threshold test in cancellation of removal

cases. Sotelo, 23 I&N Dec. at 204. Instead, the Board will weigh the

favorable and adverse factors to determine whether, on balance, the

“totality of the evidence before us” indicates that the “respondent has

adequately demonstrated that he warrants a favorable exercise of

discretion and a grant of cancellation of removal under section 240A(a)

of the Act.” Id.

(1) Matter of Marin and other cases dealing with the exercise of

discretion are discussed below in the section dealing with 212(c)

waivers.

F. A waiver under former section 212(c)

1. INTRODUCTION - Former section 212(c) provided for a waiver for certain

grounds of exclusion for LPRs who had departed and were seeking re-entry to

the United States. Former section 212(c) stated: “Aliens lawfully admitted for

permanent residence who temporarily proceeded abroad voluntarily and not

under an order of deportation, and who are returning to a lawful

unrelinquished domicile of seven consecutive years, may be admitted in the

discretion of the Attorney General, without regard to the provision of

subsection (a) of the section[.]” A waiver, if granted, caused a ground of

exclusion to be overlooked in considering the alien’s excludability. The alien

was returned to the same LPR status previously held. Matter of Przygocki, 17

I&N Dec. 361 (BIA 1980). Strictly speaking, this is different from a “relief,”

but is usually referred to as one of the forms of relief available from both

exclusion and deportation.

2. History lesson

a. A provision similar to section 212(c) dates back to 1917. The 7th

proviso to section 3 of the Immigration Act of 1917 (usually referred to

as “The Seventh Proviso”) allowed the Attorney General, in his

discretion, to admit aliens returning after a temporary absence to an

unrelinquished U.S. domicile of 7 consecutive years. In the Immigration

and Nationality Act of 1952, Congress replaced the 7th Proviso with

section 212(c) and limited its availability to aliens lawfully admitted for

permanent residence.

b. Section 212(c) was originally applied only as a waiver of excludability

available to LPRs who sought to re-enter the U.S. after a temporary

absence or to obtain an advance waiver in contemplation of a future

absence. It was judicially expanded to also include those aliens who had

not departed the U.S. Francis v. INS, 532 F.2d 268 (2nd Cir. 1976). 
page 115 of 365

The court found that the statute created 2 classes of aliens identical in

every respect except that one class had departed and returned to the U.S.

and held that to limit the 212(c) waiver to those who departed and

returned deprived those who had not departed of equal protection of the

laws under the Fifth Amendment. The Board accepted this interpretation

in Matter of Silva, 16 I&N Dec. 26 (BIA 1976) and section 212(c) has

since been available as relief in deportation proceedings as well as in

exclusion proceedings. However, in a 2009 en banc decision, the Ninth

Circuit decided that section 212(c) only provides relief from

inadmissibility, not deportation. Abebe v. Mukasey, 554 F.3d 1203 (9th

Cir. 2009). In Pascua v. Holder, 641 F.3d 316 (9th Cir. 2011), the Ninth

Circuit clarified its decision in Abebe v. Mukasey, 554 F.3d 1203 (9th

Cir. 2009) (en banc) (per curiam), noting that section 212(c) relief

remains available as a remedy from deportation, as well as

inadmissibility. Although portions of Abebe suggest that section 212(c)

allows relief only from inadmissibility, id. at 1205, 1207, the Ninth

Circuit stated that Abebe did not “undermine the validity of DHS

regulations that extend the remedy of deportation.” Id. See also

Gallegos-Vasquez v. Holder, 636 F.3d 1181 (9th Cir. 2011) (holding that

an alien in removal proceedings was eligible for section 212(c) relief). 

c. In Gallegos-Vasquez v. Holder, 636 F.3d 1181 (9th Cir. 2011), the Ninth

Circuit held that for purposes of eligibility for section 212(c) relief, the

alien’s testimony constituted sufficient evidence that his convictions

were pursuant to guilty pleas, even in the absence of criminal conviction

records. The Ninth Circuit further held that the alien had a settled

expectation of the availability of section 212(c) relief at the time he pled

guilty to his deportable offense in September 1989, despite the facts that

he was not yet a lawful permanent resident at the time and his third

misdemeanor conviction gave the Attorney General the discretionary

authority to terminate his temporary resident status. Id. 

d. Section 511(b) of the Immigration Act of 1990 (“IMMACT 1990”),

effective on November 29, 1990, amended section 212(c) to provide that

its benefits were unavailable to an alien who had been convicted of one

or more aggravated felonies and had served a term of imprisonment of at

least five years for such felony or felonies.

e. Section 440(d) of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), effective on April 24, 1996, replaced IMMACT 1990

to preclude section 212(c) relief to all aliens who were deportable by

reason of having committed any criminal offense covered in former

section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by

former section 241(a)(2)(A)(ii) for which both predicate offenses were

covered by section 241(a)(2)(A)(i) of the Act.
page 116 of 365

f. Then the Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 (“IIRIRA”), repealed section 212(c) and specifically eliminated

it in all cases commencing on or after April 1, 1997. IIRIRA also

reduced the potential sentence required for a conviction to be considered

an aggravated felony from 5 years to 1 year.

(1) Section 309(c)(3) of IIRIRA permits aliens in deportation

proceedings who would have been eligible for a waiver under

former section 212(c) but for AEDPA section 440(d) and who

would be eligible for cancellation of removal under section

240A(a), to seek termination of the deportation proceedings and

initiation of removal proceedings.

g. These amendments set off a wave of litigation in the District and Circuit

courts. 

(1) The Second Circuit in Henderson v. INS, 157 F.3d 106, 129-30 (2d

Cir. 1998), cert. denied sub nom. Reno v. Navas, 526 U.S. 1004

(1999), concluded that the amendments made to section 212(c) of

the Act by section 440(d) of the AEDPA do not apply retroactively

to deportation proceedings pending on April 24, 1996. The Second

Circuit specifically stated that the “traditional rules of statutory

interpretation all point in one direction: §440(d) [of the AEDPA]

should not apply retroactively.” Id. at 130. Note: The Board

previously held that the AEDPA section 440(d) bar is inapplicable

to aliens seeking relief in exclusion proceedings. Matter of

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

(2) The Second Circuit later decided that the bars on applying for a

section 212(c) waiver enacted in section 440(d) of the AEDPA and

section 304 of the IIRIRA do not apply to an alien who entered a

plea of guilty or nolo contendere to an otherwise qualifying crime

prior to the IIRIRA’s enactment date. St. Cyr v. INS, 229 F.3d 406

(2d Cir. 2000). This decision was affirmed by the Supreme Court

of the United States in INS v. St. Cyr, 533 U.S. 289 (2001). The

Supreme Court held that section 212(c) relief remains available for

aliens whose convictions were obtained by plea agreements and

who, notwithstanding those convictions, would have been eligible

for section 212(c) relief at the time of their plea under the law then

in effect. The Board has emphasized that the date of the alien’s

plea agreement, not the date of sentencing, is controlling when

determining whether the alien is eligible for a section 212(c)

waiver. Matter of Moreno-Escobosa, 25 I&N Dec. 114 (BIA 2009).

3. Since former section 212(c) has been repealed, it exists only as resurrected by

the Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001), and its progeny. In
page 117 of 365

October 2004, the section 212(c) regulations were amended to conform with

the St. Cyr decision. Note: the Circuit Courts of Appeals have various and

differing interpretations regarding of the applicability of former section 212(c)

relief. 

a. The Circuit Courts of Appeal disagree on the issue of whether the repeal

of section 212(c) can be applied retroactively to aliens whose

convictions resulted from a jury trial and not from a plea of guilty. Some

circuits have held that former section 212(c) relief under St Cyr is

limited to aliens convicted by a plea of guilty or nolo contendere. See

Dias v. INS, 311 F.3d 456, 458 (1st Cir. 2002), cert. denied, 539 U.S.

926, 123 S.Ct. 2574, 156 L.Ed.2d 603 (2003); Montenegro v. Ashcroft,

355 F.3d 1035, 1037 (7th Cir. 2004); Armendariz-Montoya v. Sonchik,

291 F.3d 1116, 1121-22 (9th Cir. 2002), cert. denied, 539 U.S. 902, 123

S.Ct. 2247, 156 L.Ed.2d 110 (2003). Other circuits have decided that the

impermissible retroactive effect identified in St. Cyr is not limited to

aliens convicted by guilty plea. See Lovan v. Holder, 574 F.3d 990, 993

(8th Cir. 2009); Atkinson v. Att’y Gen., 479 F.3d 222, 230-31 (3d Cir.

2007); Carranza-De Salinas v. Gonzales, 477 F.3d 200, 206-09 (5th Cir.

2007); Hem v. Maurer, 458 F.3d 1185, 1200 (10th Cir. 2006); Restrepo

v. McElroy, 369 F.3d 627, 631-40 (2d Cir. 2004). The Fifth, Second and

Eleventh Circuits require aliens convicted after a trial to prove actual

reliance on former section 212(c) to establish eligibility for relief under

St. Cyr. Carranza-De Salinas, 477 F.3d at 205; Wilson v. Gonzales, 471

F.3d 111, 122 (2d Cir.2006) (requiring “objective evidence” the alien

“almost certainly relied”); Ferguson v. Att’y Gen., 563 F.3d 1254 (11th

Cir. 2009). The Eight Circuit and Third Circuit do not require such

evidence of reliance. Lovan, 574 F.3d at 993; Atkinson, 479 F.3d at

230-31. The Fourth Circuit’s position seems unclear. Compare

Chambers v. Reno, 307 F.3d 284, 290-93 (4th Cir. 2002) (“We are

presented with the very narrow question of whether the fact that

Chambers was convicted at trial rather than by guilty plea pursuant to a

plea agreement changes the result dictated by St. Cyr. We conclude that,

in Chambers’ case, it does.”), with Olatunji v. Ashcroft, 387 F.3d 383,

389-95 (4th Cir. 2004) (“[E]ven aliens who have not detrimentally relied

on pre-IIRIRA law can sustain a claim that IIRIRA is impermissibly

retroactive.”).

4. Jurisdiction, 8 C.F.R. § 1212.3(a). An application by an eligible alien for the

exercise of discretion under former section 212(c) of the Act (as in effect prior

to April 1, 1997), if made in the course of proceedings under section 240 of

the Act, or under former section 235, 236 or 242, shall be submitted to the IJ

by filing an Application for Advance Permission to Return to Unrelinquished

Domicile (Form I-191).

5. Substantive requirements
page 118 of 365

a. The alien must be a lawful permanent resident (“LPR”).

(1) Section 101(a)(20) of the Act defines the term “lawfully admitted

for permanent residence” as the status of having been lawfully

accorded the privilege of residing permanently in the U.S. as an

immigrant in accordance with the immigration laws, such status

not having changed.

(a) Therefore, an alien who has lost or abandoned his status as an

LPR is not eligible to apply for a section 212(c) waiver. But

see, 8 C.F.R. § 1003.44 (special motions to reopen for former

section 212(c) relief). See pages 127-128 below for

discussion of special motions to reopen for former section

212(c) relief.

(2) The Board held that an alien who had resided in the U.S. for 8

years following admission as an LPR was not eligible for a section

212(c) waiver because his original entry as an LPR was not

“lawful” in that he had concealed the fact of a prior deportation

when he applied for the immigrant visa. Matter of T-, 6 I&N Dec.

136 (BIA 1954; A.G. 1954). This case was not cited again for 42

years. However, the Board cited it as good law in Matter of

Garcia, 21 I&N Dec. 254 (BIA 1996). See also Segura v. Holder,

605 F.3d 1063 (9th Cir. 2010).

(a) Since nunc pro tunc permission to reapply for admission is

available only in the limited circumstances where a grant of

such relief would effect a complete disposition of the case

(i.e. where the only ground of deportability or inadmissibility

would be eliminated or where the alien would receive a grant

of adjustment of status in conjunction with the grant of any

appropriate waivers of inadmissibility), nunc pro tunc

permission to reapply for admission is not available to an

alien who returned to the U.S. with an immigrant visa after

deportation but without obtaining advance permission to

reapply and who is also deportable because of a drug-related

conviction because he would remain deportable for the drug

conviction even if permission to reapply for admission were

granted. Matter of Garcia, 21 I&N Dec. 254 (BIA 1996). 

Therefore, such an alien is not eligible for section 212(c)

waiver because he is not independently eligible for the waiver

as a result of his unlawful entry. Id.

(3) Commuters. An alien admitted to the U.S. as an LPR who later

moved to Mexico to reside and who commuted daily from his
page 119 of 365

home in Mexico to his employment in the U.S. was found to reside

in Mexico and not the U.S., to have no domicile in the U.S. during

the time he resided in Mexico, and therefore to be statutorily

ineligible for relief under section 212(c) of the Act. Matter of

Carrasco, 16 I&N Dec. 195 (BIA 1977); Matter of GarciaQuintero, 15 I&N Dec. 244 (BIA 1975). The lack of domicile in

the U.S. was held to exist even though the alien commuter paid

taxes in the U.S., had a California driver's license, and registered in

the U.S. for Selective Service. Matter of Sanchez, 17 I&N Dec.

218 (BIA 1980). In Matter of Garcia-Quintero, 15 I&N Dec. 244

(BIA 1975), the Board conceded that the alien maintained his LPR

status during the time he commuted to the U.S. to work, thus

distinguishing the “commuter” situation from an alien who

abandoned his status as an LPR. Therefore, it would seem that an

alien commuter who moves back to the U.S. to reside would have a

"lawful unrelinquished domicile of 7 consecutive years" after he

resided in the U.S. for 7 years.

(4) When LPR status terminates

(a) The Board held that the LPR status of an alien terminates

within the meaning of section 101(a)(20) with the entry of a

final administrative order of deportation. Matter of Lok, 18

I&N Dec. 101 (BIA 1981). An order becomes final when the

time allotted for appeal expires, or when the Board renders its

decision on appeal or certification. Id. Since the LPR status

of an alien continues until the entry of a final administrative

order of deportation, an alien who enters the U.S. while in an

excludable class before accruing 7 years as an LPR does not

lose his lawful status and is eligible to apply for a section

212(c) waiver if he attains 7 years before an administratively

final order of deportation is entered. Matter of Duarte, 18

I&N Dec. 329 (BIA 1982). Once an order of deportation

becomes administratively final, an alien may not thereafter

establish eligibility as an LPR for relief under section 212(c)

(barring reversal on the merits of the finding of deportability

by an appellate court or an administrative order reopening

proceedings) nor may his domicile in the U.S. from then on

be considered lawful for section 212(c) purposes. Matter of

Lok, 18 I&N Dec. 101 (BIA 1976); Matter of Cerna, 20 I&N

Dec. 399 (BIA 1991). A respondent who was denied a

waiver under section 212(c) and who is subject to an

administratively final order of deportation cannot

successfully move to reopen deportation proceedings to offer

new evidence on his section 212(c) eligibility because such a

respondent is no longer an LPR. Cerna, 20 I&N Dec. 399.
page 120 of 365

An entirely opposite decision was reached in Matter of

Rodarte-Espinoza, 21 I&N Dec. 150 (BIA 1995). The

decision did not say so explicitly, but it appears to be limited

only to cases arising in the 9th Circuit.

b. The alien must have a lawful unrelinquished domicile in the U.S. for 7

consecutive years.

(1) The Board held that the alien must have been an LPR for all of the

7 years and time spent in the U.S. in an immigration status other

than LPR does not count toward the 7 years. Matter of Newton, 17

I&N Dec. 133 (BIA 1979); Matter of Anwo, 16 I&N Dec. 293

(BIA 1977); Matter of Lok, 15 I&N Dec. 720 (BIA 1976),

remanded, 548 F.2d 37 (2d Cir. 1977); Matter of S-, 5 I&N Dec.

116 (BIA 1953). In 1991, the Attorney General effectively

codified Matter of S-, by promulgating 8 C.F.R. § 212.3(f)(2) [now

8 C.F.R. § 1212.(3)(f)(2)] which provides that any application for a

section 212(c) waiver shall be denied if the alien has not

maintained LPR status for at least 7 consecutive years immediately

preceding the filing of the application. In a case involving whether

or not time spent as a temporary resident should count toward the 7

years, the Board held that it is bound by and will follow the

regulation absent contrary circuit court precedent. Matter of Ponce

de Leon, 21 I&N Dec. 154 (BIA 1996). 

(2) The 7-year period begins on the effective date of LPR status. If an

alien received a retroactive date of LPR status, (“roll-back” date),

the 7-year period begins on the roll-back date, not on the later date

when the adjustment of status was approved. Matter of DiazChambrot, 19 I&N Dec. 674 (BIA 1988); Matter of RiveraRioseco, 19 I&N Dec. 833 (BIA 1988). 

(3) A waiver of deportability under former section 241(f) of the Act

[now section 237(a)(1)(H)] waives not only the alien's deportability

but also the underlying fraud or misrepresentation and renders the

alien a LPR from the time of his initial entry in that status. 

Therefore, the waiver recipient may use the time accrued since the

initial granting of LPR status to establish the 7 years required for a

section 212(c) waiver. Matter of Sosa-Hernandez, 20 I&N Dec.

758 (BIA 1993).

6. Grounds of inadmissibility and deportability which cannot be waived under

former section 212(c)

a. Grounds of inadmissibility which cannot be waived by former section

212(c) are as follows [8 C.F.R. § 1212.3(f)(3)]:
page 121 of 365

(1) Section 212(a)(3)(A) - aliens who are a threat to national security,

etc.,

(2) Section 212(a)(3)(B) - aliens engaging in terrorist activities,

(3) Section 212(a)(3)(C) - aliens having an adverse effect on U.S.

foreign policy,

(4) Section 212(a)(3)(E) - aliens participating in genocide or Nazi

persecutions,

(5) Section 212(a)(10)(C) - aliens refusing to surrender custody of

citizen children.

b. A former section 212(c) waiver is unavailable to an alien who has been

charged and found to be deportable or removable on the basis of a crime

that is an aggravated felony. 8 C.F.R. §1212.3(f)(4).

(1) An alien whose convictions for one or more aggravated felonies

were entered pursuant to plea agreements made on or after

November 29, 1990, but prior to April 24, 1996, is ineligible for

former section 212(c) relief only if he or she has served a term of

imprisonment of five years or more for such aggravated felony or

felonies [8 C.F.R. § 1212.3(f)(4)(i)];

(2) An alien is not ineligible for former section 212(c) relief on

account of an aggravated felony conviction entered pursuant to a

plea agreement made before November 29, 1990 [8 C.F.R. §

1212.3(f)(4)(ii)].

c. A section 212(c) waiver is available in deportation proceedings only in

cases in which the ground of deportation has a comparable ground of

exclusion/inadmissiblity which may be waived by former section 212(c). 

8 C.F.R. § 1212.3(f)(5); Matter of Blake, 23 I&N Dec. 722 (BIA 2005);

Matter of Brieva, 23 I&N Dec. 766 (BIA 2005); Matter of Meza, 20 I&N

Dec. 257 (BIA 1991). 

(1) In Matter of Blake, 23 I&N Dec. 722 (BIA 2005), the Board held

that the statutory counterpart test turns on “whether Congress

employed similar language to describe substantially equivalent

categories of offenses.” The First, Third, Fifth, Seventh, and

Eighth Circuits have followed Matter of Blake in precedent

decisions. See Gonzalez-Mesias v. Mukasey, 529 F.3d 62 (1st Cir.

2008); Zamora-Mallari v. Mukasey, 514 F.3d 679 (7th Cir. 2008);

Caroleo v. Gonzales, 476 F.3d 158 (3d Cir. 2007); Vo v. Gonzales,
page 122 of 365

482 F.3d 363 (5th Cir. 2007); Brieva-Perez v. Gonzales, 482 F.3d

356 (5th Cir. 2007); Valere v. Gonzales, 473 F.3d 757 (7th Cir.

2007); Vue v. Gonzales, 496 F.3d 858 (8th Cir. 2007). However,

in Blake v. Carbone, 489 F.3d 88 (2d Cir. 2007), the Second

Circuit declined to follow Matter of Blake, ruling that the statutory

counterpart test should be based on whether the underlying offense

would render an alien excludable as well as removable, rather than

on a comparison of the language used in the Act to describe the

two categories of offenses. The Supreme Court has granted

certiorari in Judulang v. Holder, 131 S. Ct. 2093 (U.S. April 18,

2011)(reviewing Judulang v. Gonzales, 249 Fed. Appx. 499 (9th

Cir. 2007)) to resolve the lopsided circuit split. In Judulang, the

Ninth Circuit determined that a person found removable for sexual

abuse of a minor, an aggravated felony, was not eligible for section

212(c) relief because there was no comparable ground of

inadmissibility. 

(2) In Matter of Hernandez-Casillas, 20 I&N Dec. 262 (BIA 1990;

A.G. 1991), aff’d, 983 F.2d 231 (5th Cir. 1993), the Board sought

to make a section 212(c) waiver available to any ground of

deportability except those which have a comparable ground of

excludability specifically exempted by section 212(c). The

Attorney General disapproved the Board’s decision and held that a

section 212(c) waiver is unavailable in deportation proceedings

unless the alien is deportable under a ground of deportability for

which there is a comparable ground of excludability.

(a) Most Circuit courts have agreed that a section 212(c) waiver

is only available when the ground of deportability has a

corresponding ground of exclusion. Campos v. INS, 961

F.2d 309 (1st Cir. 1992); Rodriguez v. INS, 9 F.3d 408 (5th

Cir. 1993); Leal-Rodriguez v. INS, 990 F.2d 939 (7th Cir.

1993); Cabasug v. INS, 847 F.2d 1321 (9th Cir. 1988);

Padron v. INS, 13 F.3d 1455 (11th Cir. 1994). Only the 2nd

Circuit takes a contrary view. Bedoya-Valencia v. INS, 6

F.3d 891 (2d Cir. 1993).

(3) However, a waiver under section 212(c) is not unavailable in

deportation proceedings to an alien convicted of an aggravated

felony simply because there is no ground of exclusion which

recites the words, “convicted of an aggravated felony.” Matter of

Meza, 20 I&N Dec. 257 (BIA 1991). The Board held that the 1990

amendment to section 212(c) which makes its waiver unavailable

to an alien who has been convicted of an aggravated felony and has

served a term of imprisonment of at least 5 years implies that

Congress intended that some aliens convicted of an aggravated
page 123 of 365

felony are eligible for the waiver. The specific category of

aggravated felony in the case was one involving trafficking in a

controlled substance. Since such a conviction could also form the

basis for excludability under section 212(a)(23) [as an alien

convicted of a violation of any law or regulation relating to a

controlled substance], the Board held that the alien was not

statutorily precluded from applying for a section 212(c) waiver. 

The Board did not discuss the other categories of aggravated

felonies to determine if LPRs deportable under any other category

may qualify for a section 212(c) waiver.

(4) In Matter of Blake, 23 I&N Dec. 722 (BIA 2005), the Board held

that the aggravated felony ground of removal for sexual abuse of a

minor has no statutory counterpart on the grounds of

inadmissibility under section 212(a)(2) of the Act. The Board has

also held that the aggravated felony ground of removal for a crime

of violence has no comparable ground of inadmissiblity. Matter of

Brieva, 23 I&N Dec. 766 (BIA 2005).

d. A waiver under section 212(c) of the Act may be sought in conjunction

with an application for adjustment of status by an alien who is

deportable for both drug and weapons offenses. Matter of Gabryelsky,

20 I&N Dec. 750 (BIA 1993), superseded by statute as stated in Osborne

v. Gonzales, 225 F. App’x 464 (9th Cir. 2007). See also Pascua v.

Holder, 641 F.3d 316 (9th Cir. 2011).

7. The alien must merit a favorable exercise of discretion.

a. The IJ is required to balance the adverse factors of record evidencing an

alien’s undesirability as a permanent resident against the favorable

factors and social and humane considerations to determine if the

granting of relief is in the best interest of the United States. Among the

negative factors to be considered are the nature and underlying

circumstances of the exclusion ground at issue, the presence of

additional significant violations of this country’s immigration laws, the

existence of a criminal record and, if so, its nature, recency, seriousness,

and the presence of other evidence indicative of a respondent’s bad

character or undesirability as a permanent resident of this country. 

Favorable considerations have been found to include such factors as

family ties within the United States, residence of long duration in this

country (particularly when the inception of residence occurred while the

respondent was of young age), evidence of hardship to the respondent

and family if deportation occurs, service in this country’s Armed Forces,

a history of employment, the existence of property or business ties,

evidence of value and service to the community, proof of a genuine

rehabilitation if a criminal record exists, and other evidence attesting to a
page 124 of 365

respondent’s good character (such as affidavits from family, friends, and

responsible community representatives). Matter of Marin, 16 I&N Dec.

581 (BIA 1978); Matter of Salmon, 16 I&N Dec. 734 (BIA 1978);

Matter of Khalik, 17 I&N Dec. 518 (BIA 1980). 

(1) A respondent’s lack of remorse or refusal to accept responsibility

for criminal acts may be considered as an adverse factor in the

exercise of discretion. Matter of Khalik, 17 I&N Dec. 518 (BIA

1980).

(2) While community ties, property and business holdings, or special

service to the community are to be considered in the alien’s favor,

the absence of those additional ties in themselves does not negate

the weight to be accorded the alien’s long residence in this country

which was otherwise without a criminal record and during most of

which the alien was employed. Matter of Arreguin, 21 I&N Dec.

38 (BIA 1995).

(3) Evidence of general conditions in an alien’s homeland may be

weighed as a factor in evaluating an application under section

212(c) of the Act but, since Congress has provided asylum and

withholding of deportation under sections 208 and 243(h) of the

Act as the appropriate avenues for requesting relief from

deportation on the basis of a fear of persecution, allegations and

evidence regarding a well-founded fear or clear probability of

persecution have no place in a section 212(c) application or

adjudication. Matter of D-, 20 I&N Dec. 915 (BIA 1994).

b. The equities that an applicant for section 212(c) relief must bring

forward to establish that favorable discretionary action is warranted will

depend in each case on the nature and circumstances of the ground of

exclusion sought waived and on the presence of any additional adverse

factors. Matter of Marin, 16 I&N Dec. 581 (BIA 1978). As the negative

factors grow more serious, it becomes incumbent upon the applicant to

introduce additional offsetting favorable evidence, which in some cases

may have to involve unusual or outstanding equities. Id. Such a showing

at times may be required solely by virtue of the circumstances and nature

of the exclusion ground sought waived. Id.

(1) In Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995), the Board

found the existence of 2 minor dependent US citizen children to be

an outstanding equity. The Board also found 20 years of LPR status

which commenced at the age of 17 to be an unusual or outstanding

equity.
page 125 of 365

c. In a case involving a criminal conviction, the gravity of the offense must

be examined. Matter of Buscemi, 19 I&N Dec. 628 (BIA 1988). The

necessity of demonstrating unusual or outstanding equities may be

required by the presence of a conviction of a single serious crime such as

an offense involving controlled substances, or it may be required

because of a succession of criminal acts which together establish a

pattern of serious criminal misconduct. Id. The Board does not look to

what ground of deportability or inadmissibility a particular crime comes

within, but rather to the nature of the underlying crime itself in

determining the degree of equities that will be required to overcome the

crime. Matter of Roberts, 20 I&N Dec. 294 (BIA 1991).

(1) In Matter of Roberts, 20 I&N Dec. 294 (BIA 1991), the INS

argued that an applicant for a section 212(c) waiver who has been

convicted of an aggravated felony should be required to show that

he is fully rehabilitated and that deportation would result in

exceptional and extremely unusual hardship to the respondent’s

U.S. Citizen or LPR spouse, parent, or child. The Board rejected

this argument and held that the balancing test set forth in Matter of

Marin, Matter of Buscemi, and Matter of Edwards adequately

allows for determining the appropriate strength of the equities

necessary to overcome an alien’s crimes in view of their nature and

seriousness.

(2) Inquiry may be had into the circumstances surrounding the

commission of a crime in order to determine whether a favorable

exercise of discretion is warranted, but it is impermissible to go

behind a record of conviction to reassess an alien's ultimate guilt or

innocence. Matter of Roberts, 20 I&N Dec. 294 (BIA 1991);

Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).

(a) An IJ may consider evidence that the respondent engaged in

criminal activity to support his drug habit. Matter of

Edwards, 20 I&N Dec. 191 (BIA 1990).

(b) An IJ may not consider evidence on the issue of entrapment,

for that issue directly relates to the question of the

respondent's ultimate guilt or innocence. Matter of Roberts,

20 I&N Dec. 294 (BIA 1991).

(3) An alien who demonstrates unusual or outstanding equities when

required merely satisfies the threshold test for having a favorable

exercise of discretion considered in his case. Such a showing does

not compel that discretion be exercised in his favor. Matter of

Buscemi, 19 I&N Dec. 628 (BIA 1988). In some cases, the

seriousness of the crime may still not be overcome by the equities
page 126 of 365

demonstrated, even though the equities are unusual or outstanding. 

Matter of Roberts, 20 I&N Dec. 294 (BIA 1991); Matter of

Buscemi, 19 I&N Dec. 628 (BIA 1988).

(a) In response to criticism by some Circuit Courts, the Board

stated that, in reviewing a discretionary determination of an

IJ, it relies upon its own independent judgment in deciding

the ultimate disposition of the case and that it has no de facto

policy of denying a section 212(c) waiver to all aliens

convicted of a serious drug offense. Matter of Burbano, 20 

I&N Dec. 872 (BIA 1994). However, a serious drug crime

will be accorded due weight, as is consistent with the

evolution of the immigration law in this area, and may

ultimately be the determinative factor in a given case. Id.

(4) Aliens who have been convicted of a crime should make a showing

of rehabilitation before relief under section 212(c) will be

considered as a matter of discretion. Matter of Buscemi, 19 I&N

Dec. 628 (BIA 1988); Matter of Marin, 16 I&N Dec. 581 (BIA

1978).

(a) However, a clear showing of reformation is not an absolute

prerequisite to a favorable exercise of discretion and the issue

of rehabilitation should not be viewed as a “threshold test” to

be met before other factors are considered in a section 212(c)

case involving a criminal conviction. Matter of Edwards, 20 

I&N Dec. 191 (BIA 1990).

(b) A proper determination as to whether an alien has

demonstrated outstanding or unusual equities in a section

212(c) waiver application can only be made after a complete

review of the favorable factors in his case, therefore section

212(c) cases must be evaluated on a case-by-case basis, with

rehabilitation as a factor to be considered in the exercise of

discretion. Matter of Edwards, 20 I&N Dec. 191 (BIA 1990).

(c) There is no irrebuttable presumption that a confined or

recently convicted alien can never establish either that

rehabilitation has occurred or that relief under section 212(c)

should otherwise be granted. Matter of Marin, 16 I&N Dec.

581 (BIA 1978). But the recency of a conviction and the fact

of confinement are matters relevant to the consideration of

whether an alien has demonstrated rehabilitation and whether

relief should be granted as a matter of discretion. Id. 

Confined aliens and those who have recently committed

criminal acts have a more difficult task in demonstrating
page 127 of 365

rehabilitation than aliens who have committed the same

offenses in the more distant past. Matter of Silva-Rodriguez,

20 I&N Dec. 448 (BIA 1992); Matter of Marin, 16 I&N Dec.

581 (BIA 1978). Dependent upon the nature of the offense

and the circumstances of confinement, it may well be that a

confined respondent will not be able to demonstrate

rehabilitation. Id. While the timing of the issuance of an

OSC by the Service can have a significant effect on the

circumstances relevant to the exercise of discretion, this fact

alone does not mandate that proceedings should be delayed in

order to afford an alien a better opportunity to prove

rehabilitation. Matter of Silva-Rodriguez, 20 I&N Dec. 448

(BIA 1992); Matter of Marin, 16 I&N Dec. 581 (BIA 1978). 

Therefore, an IJ did not act with “good cause” under the

regulations by granting a 1 year continuance so that the

respondent would have more time to establish rehabilitation. 

Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992).

i) In Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995), the

Board found that an alien's acceptance of responsibility

for her crime (both during the hearing and in a

presentence investigation which resulted in a reduction

of sentence) and her achievements while in prison

(voluntarily pursuing GED studies for which she

received a letter of commendation, pursuing other

courses, having no prison infractions, and being

involved in a church ministry) were favorable indicators

of efforts at rehabilitation.

8. Special Motions to Reopen for Former Section 212(c) Relief - 8 C.F.R. §

1003.44

a. This section applies to certain aliens who formerly were lawful

permanent residents and who are subject to an administratively final

order of deportation or removal and who are eligible to apply for relief

under former section 212(c) of the Act and 8 C.F.R. § 1212.3 with

respect to convictions obtained by plea agreement reached prior to a

verdict at trial prior to April 1, 1997. 

b. These motions are adjudicated under the standards set forth at 8 C.F.R. §

1212.3.

c. General eligibility. The alien has the burden of establishing eligibility

for relief, including the date on which the alien and the prosecution

agreed on the plea of guilt or nolo contendere. The motion must

establish that the alien:
page 128 of 365

(1) Was a lawful permanent resident and is now subject to a final order

of deportation or removal;

(2) Agreed to plead guilty or nolo contendere to an offense rendering

the alien deportable or removable, pursuant to a plea agreement

made before April 1, 1997;

(3) Had seven consecutive years of lawful unrelinquished domicile in

the United States prior to the date of the final administrative order

of deportation or removal; and

(4) Is otherwise eligible to apply for former section 212(c) relief under

the standards that were in effect at the time the alien’s plea was

made.

d. Deadline to file motion. Such a motion must have been filed on or

before April 26, 2005.

e. Limitations on eligibility. Aliens who have departed the United States

and who are currently outside the United States, aliens issued a final

order of deportation or removal who then illegally return to the United

States or alien who have not been admitted or paroled are not eligible to

file a special motion for former section 212(c) relief.

G. Asylum

1. Authority to apply for asylum - Section 208(a)

a. Any alien who is physically present in the U.S. or who arrives in the

U.S. (whether or not at a designated port of arrival and including an alien

who is brought to the U.S. after having been interdicted in international

or U.S. waters), irrespective of such alien’s status, may apply for asylum

in accordance with section 208 or, where applicable, section 235(b). 

INA § 208(a)(1).

2. Exceptions - Section 208(a)(2)

a. Safe third country - Section 208(a)(2)(A). Authority to apply for asylum

under section 208(a)(1) shall not apply to an alien if the Attorney

General determines that the alien may be removed, pursuant to a bilateral

or multilateral agreement, to a country (other than the country of the

alien’s nationality or, in the case of the alien having no nationality, the

country of the alien’s last habitual residence) in which the alien’s life or

freedom would not be threatened on account of race, religion,

nationality, membership in a particular social group, or political opinion,
page 129 of 365

and where the alien would have access to a full and fair procedure for

determining a claim to asylum or equivalent temporary protection, unless

the Attorney General finds that it is in the public interest for the alien to

receive asylum to the U.S.

(1) Safe third country agreement with Canada. 8 C.F.R. §

208.30(e)(6).

b. Time limit - Section 208(a)(2)(B). Subject to the changed circumstances

set forth in section 208(a)(2)(D), authority to apply for asylum under

section 208(a)(1) shall not apply to an alien unless the alien

demonstrates by clear and convincing evidence that the application has

been filed within 1 year after the date of the alien’s arrival in the United

States. 8 C.F.R. § 1208.4(a)(2)(ii) provides that the one year period shall

be calculated from the date of the alien’s last arrival in the U.S. or April

1, 1997, whichever is later. 

(1) In Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008), the Board ruled

that, for purposes of determining whether an asylum application

was filed within one year “from the date of the alien’s last arrival

in the United States,” under 8 C.F.R. § 1208.4(a)(2)(ii), “the words

‘last arrival’ refer to an alien’s most recent coming or crossing into

the United States after having traveled from somewhere outside of

the country.” Here, the respondent had been in the US since 1989,

but returned to Mexico on June 17, 2005. He attempted to come

back to the US on July 20, 2005. The IJ refused to treat July 20,

2005, as the date of the respondent’s “last arrival,” stating that

“applicants should not be able to reset the asylum clock by taking a

short excursion abroad.” In reversing the IJ’s ruling, the Board

disagreed with Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir.

2006), in which the Second Circuit stated that “the term ‘last

arrival in the United States’ should not be read to include an alien’s

return to the United States after a brief trip abroad pursuant to a

parole explicitly permitted by United States immigration

authorities.” In addition, the Board stated that “we need not here

examine whether the regulation should be read to embody an

implicit exception in a case where it is found that an alien's trip

abroad was solely or principally intended to overcome the 1-year

time bar.” (Emphasis in original.)

(a) In Singh v. Holder, 649 F.3d 1161 (9th Cir. 2011), the Ninth

Circuit held that the Board erred in imposing the

corroboration provision of section 208(b)(1)(B)(ii) to the

issue of whether an alien’s asylum application was timely

filed under section 208(a)(2)(B). 
page 130 of 365

(2) Changed circumstances- Section 208(a)(2)(D). Notwithstanding

sections 208(a)(2)(B) &(C), an application for asylum may be

considered if the alien demonstrates to the satisfaction of the

Attorney General either the existence of changed circumstances

which materially affect the applicant's eligibility for asylum or

extraordinary circumstances relating to the delay in filing an

application within the 1 year time period. 8 C.F.R. § 1208.4(a)(4)

provides that the term “changed circumstances” shall refer to

circumstances materially affecting the applicant’s eligibility for

asylum. They may include: changes in conditions in the applicant’s

country of nationality or, if the person is stateless, country of last

habitual residence or changes in objective circumstances relating to

the applicant in the U.S., including changes in applicable U.S. law,

that create a reasonable possibility that the applicant may qualify

for asylum. 8 C.F.R. § 1208.4(a)(4)(ii) provides that the applicant

shall apply for asylum within a reasonable period given those

“changed circumstances.” An alien does not receive an automatic

one-year extension in which to file an asylum application following

“changed circumstances.” Matter of T-M-H- & S-W-C-, 25 I&N

Dec. 193 (BIA 2010). The particular circumstances related to

delays in filing the application must be evaluated to determine

whether the application was filed within a reasonable time. Id.

(3) In Vahora v. Holder, 641 F.3d 1038 (9th Cir. 2011), the Ninth

Circuit determined that the IJ and Board incorrectly interpreted

“changed circumstances” as requiring the applicant to show that,

prior to the change in circumstances, the applicant could not have

filed a meritorious application, and that the change in

circumstances resulted in an application that could succeed. The

court held that the religious riots that began after the alien left India

constituted “changed circumstances” sufficient to excuse late filing

of his asylum application, even though he might previously have

had a colorable asylum claim based on mistreatment he suffered

during the prior ongoing tension between Muslims and Hindus,

because the riots were not simply a continuation of the prior unrest,

and they materially affected any claim by alien of a well-founded

fear of future persecution, particularly in light of fact that his

family’s house and farmhouse were burned, one of his brothers

vanished after being arrested, and his other brother fled after being

threatened by police. 

(4) 8 C.F.R. § 1208.4(a)(5) provides that the term “extraordinary

circumstances” shall refer to events or factors beyond the alien’s

control that caused the failure to meet the 1 year deadline. Such

circumstances shall excuse the failure to file within 1 year so long

as the alien filed the application within a reasonable period given
page 131 of 365

those circumstances. The burden of proof is on the applicant to

establish to the satisfaction of the asylum officer or IJ that the

circumstances were both beyond his control and that, but for those

circumstances, he would have filed within the 1 year period. These

circumstances may include: serious illness or mental or physical

disability of significant duration, including any effects of

persecution or violent harm suffered in the past, during the 1 year

period after arrival; legal disability (e.g. unaccompanied minor or

mental impairment) during the first year after arrival; ineffective

assistance of counsel; the applicant maintained TPS, lawful

immigrant or nonimmigrant status, or was given parole, until a

reasonable period before the filing of the asylum application; the

applicant submitted an asylum application prior to the expiration of

the 1 year deadline, but the application was rejected by the service

and was refiled within a reasonable period thereafter.

(a) An unaccompanied minor who was in the custody of the

Service pending removal proceedings during the 1-year

period following his arrival in the U.S. established

extraordinary circumstances that excused his failure to file an

asylum application within 1 year after the date of his arrival. 

Matter of Y-C-, 23 I&N Dec. 286 (BIA 2002).

(5) Previous asylum applications - Section 208(a)(2)(C). Subject to the

changed circumstances set forth in section 208(a)(2)(D), authority

to apply for asylum under section 208(a)(1) shall not apply to an

alien if the alien has previously applied for asylum and had such

application denied. 8 C.F.R. § 1208.4(a)(3) provides that an

asylum application has not been denied unless denied by an IJ or

the Board.

3. Conditions for granting asylum - Section 208(b)

a. Section 208(b)(1) of the Act provides that the Attorney General may

grant asylum to an alien who has applied for asylum in accordance with

the requirements and procedures established by the Attorney General if

the Attorney General determines that such alien is a refugee within the

meaning of section 101(a)(42)(A).

(1) Section 101(a)(42)(A) defines the term “refugee” as any person

who is outside any country of such person’s nationality or, in the

case of a person having no nationality, is outside any country in

which such person last habitually resided, and who is unable or 

unwilling to return to, and is unable and unwilling to avail himself

or herself of the protection of that country because of persecution

or a well founded fear of persecution on account of race, religion,
page 132 of 365

nationality, membership in a particular social group, or political

opinion. Section 101(a)(42)(B) also provides that for purposes of

determinations under the Act, a person who has been forced to

abort a pregnancy or to undergo involuntary sterilization, or who

has been persecuted for failure or refusal to undergo such a

procedure or for other resistance to a coercive population control

program, shall be deemed to have been persecuted on account of

political opinion, and a person who has a well founded fear that he

or she would be forced to undergo such a procedure or subject to

persecution for such failure, refusal, or resistance shall be deemed

to have a well founded fear of persecution on account of political

opinion.

(a) Particular social group

i) “Persecution on account of membership in a particular

social group” refers to persecution that is directed

toward an individual who is a member of a group of

persons, all of whom share a common, immutable

characteristic, i.e., a characteristic that either is beyond

the power of the individual members of the group to

change or is so fundamental to their identities or

consciences that it ought not be required to be changed. 

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

modified by Matter of Mogharrabi, 19 I&N Dec. 439

(BIA 1987).

ii) The existence of shared descriptive characteristics is not

necessarily sufficient to qualify those possessing the

common characteristics as members of a “particular

social group” for the purposes of the refugee definition

at section 101(a)(42)(A) of the Act; rather, in

construing the term in keeping with the other four

statutory grounds, a number of factors are considered in

deciding whether a grouping should be recognized as a

basis for asylum, including how members of the

grouping are perceived by the potential persecutor, by

the asylum applicant, and by other members of the

society. Matter of R-A-, 22 I&N Dec. 906 (BIA 1999),

remanded, 23 I&N Dec. 694 (A.G. 2005). An applicant

making a “particular social group” claim must make a

showing from which it is reasonable to conclude that

the persecutor was motivated to harm the applicant, at

least in part, by the asserted group membership. Id. 

The social visibility of the members of a claimed social

group is an important consideration in determining
page 133 of 365

whether a person qualifies as a refugee. Matter of CA-, 23 I&N Dec. 951 (BIA 2006). See also Ayala v.

Holder, 640 F.3d 1095 (9th Cir. 2011) (deferring to the

Board’s interpretation of “particular social group” and

adopting Matter of C-A-’s analysis, but affirming denial

of alien’s asylum application for failure to show a

nexus); see also Matter of A-M-E- & J-G-U-, 24 I&N

Dec. 69 (BIA 2007).

iii) The Seventh Circuit held that the Board had not

sufficiently explained its reasoning behind the criterion

of social visibility, and its application of the concept

was inconsistent and therefore did not deserve

deference. Gatimi v. Holder, 578 F.3d 611 (7th Cir.

2009).

iv) The Ninth Circuit takes a more expansive view of what

constitutes a particular social group, defining it as one

united by a voluntary association, including a former

association or an innate characteristic that is so

fundamental to the identities or consciences of its

members that members either cannot or should not be

required to change it. Hernandez-Montiel v. INS, 225

F.3d 1084 (9th Cir. 2000), overruled in part by Thomas

v. Gonzales, 409 F.3d 1177 (9th Cir. 2005).

(b) Political opinion

i) In order for an alien to show persecution on account of

“political opinion,” it is not sufficient to show that a

persecutor’s conduct furthers his goal in a political

controversy; rather, the alien must show that it is his

own, individual political opinion that a persecutor seeks

to overcome by the infliction of harm or suffering. 

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

modified by Matter of Mogharrabi, 19 I&N Dec. 439

(BIA 1987).

(c) Mixed motive cases. An applicant does not need to establish

the exact motivation of a persecutor where different reasons

for actions are possible. Matter of Fuentes, 19 I&N Dec. 658,

662 (BIA 1988), superseded by statute as stated in Ayala v.

Holder, 640 F.3d 1095 (9th Cir. 2011). 

i) REAL ID Act of 2005. Before the REAL ID Act, the

applicant was required to show that the persecutor was
page 134 of 365

motivated at least in part by a protected ground. Matter

of T-M-B-, 21 I&N Dec. 775, 778 (BIA 1997). The

REAL ID Act arguably preserves the “mixed motive”

cases as it requires that the applicant establish that one

of the protected grounds was or will be at least one

central reason for persecuting the applicant. INA §

208(b)(1)(B)(i) (as amended by the REAL ID Act of

2005 and applicable to only to applications for asylum

made on or after May 11, 2005). In its first precedent

decision on the subject, the Board held that, in mixed

motive asylum cases under the REAL ID Act, the

applicant must prove that race, religion, nationality,

membership in a social group, or political opinion was

or will be at least one central reason for the claimed

persecution. Matters of J-B-N- and S-M-, 24 I&N Dec.

208 (BIA 2007). The Board required that an applicant

show that a protected ground is more than “incidental,

tangential, superficial, or subordinate to another reason

for harm.” See also Shaikh v. Holder, 588 F.3d 861

(5th Cir. 2009). 

ii) The Third Circuit upheld the Board’s test except for the

use of the word “subordinate.” The Third Circuit

reasoned that the mixed motive analysis does not

depend on a hierarchy of motivations in which one is

dominant and the rest are subordinate. Ndayshimiye v.

Att’y Gen., 557 F.3d 124 (3d Cir. 2009).

iii) The Fourth Circuit applied Matters of J-B-N- & S-Min Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir.

2009), holding that although confrontations with the

gangs took place at the asylum applicant’s church,

money and personal animosity, and not religion or

political opinion, motivated the gangs to attack the

asylum applicant. 

(2) Exceptions - Section 208(b)(2). Section 208(b)(1), relating to the

Attorney General’s authority to grant asylum, shall not apply to an

alien if the Attorney General determines that: 

(a) the alien ordered, incited, assisted, or otherwise participated

in the persecution of any person on account of race, religion,

nationality, membership in a particular social group, or

political opinion;
page 135 of 365

i) Before Negusie v. Holder, 555 U.S. 511, 129 S.Ct.

1159 (2009), the Board relied on Fedorenko v. United

States, 449 U.S. 490 (1981) to create a rule that the

voluntariness of the alien’s actions or the alien’s intent

were irrelevant in determining whether he assisted in

persecution. See Matter of Laipenieks, 18 I&N Dec.

433 (1983) (holding that in light of Fedorenko v. United

States, 449 U.S. 490 (1981), omission of intent element

compels conclusion that intent is not relevant factor);

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

(holding that motivations are immaterial to question of

whether alien assisted in persecution); Matter of

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

that alien’s participation or assistance in persecution

need not be of his own volition to bar relief pursuant to

persecutor bar). 

ii) In Negusie v. Holder, the Supreme Court held that there

was a statutory ambiguity regarding the relevance of

coercion or duress in determining whether an alien has

assisted in persecution. 129 S.Ct. at 1164-1165.

However, the Supreme Court found that the Board had

not exercised its Chevron discretion to interpret the

statute because it mistakenly relied on Fedorenko v.

United States to arrive at its rule regarding

voluntariness in assisting persecution. Id. at 1166-1167.

The Supreme Court held that Fedorenko was

inapplicable because it involved an interpretation of the

Displaced Persons Act of 1948, 62 Stat. 1009, which

contained a particular textual structure which the

Refugee Act of 1980, 94 Stat. 102-103, did not contain

and which was enacted for a different purpose than the

Refugee Act, namely addressing individuals who were

displaced by World War II. Id. at 1165-1166. Therefore,

the Supreme Court remanded the case to the Board to

exercise its discretion and for additional investigation or

explanation. Id. at 1167-1168.

iii) A finding of persecution requires some degree of intent

on the part of the persecutor to produce harm that the

applicant fears in order that the persecutor may

overcome a belief or characteristic of the applicant. 

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

modified Matter of Mogharrabi, 19 I&N Dec. 439 (BIA

1987). Thus, engaging in military actions, attacking

garrisons, burning of cars, and the destruction of other
page 136 of 365

property by participants in a civil war is not persecution

unless it can be established that there is some degree of

intent to produce harm in order to overcome a belief or

characteristic of the victim of these actions. Matter of

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

(b) the alien, having been convicted by a final judgment of a

particularly serious crime, constitutes a danger to the

community of the U.S.;

i) An alien convicted of an aggravated felony shall be

considered to have been convicted of a particularly

serious crime. INA § 208(b)(2)(B)(i).

(c) there are serious reasons for believing that the alien has

committed a serious nonpolitical crime outside the U.S. prior

to the arrival of the alien in the U.S.;

(d) there are reasonable grounds for regarding the alien as a

danger to the security of the U.S.;

i) The Ninth Circuit held that the Board applied the

appropriate standard of “reasonable grounds, i.e.,

grounds akin to probable cause,” to find that the

petitioner posed a danger to the United States and was

precluded from asylum and withholding of removal.

Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009). 

(e) the alien is described in section 212(a)(3)(B)(i)(I),(II), (III) or

(IV) or section 237(a)(4)(B)(relating to terrorist activity) (see

Abufayad v. Holder, 632 F.3d 623 (9th Cir. 2011) (agreeing

with a Board decision finding the alien to be “likely to

engage after entry in any terrorist activity” and denying the

alien CAT protection)), unless, in the case only of an alien

inadmissible under section 212(a)(3)(B)(i)(IV), the Attorney

General determines, in the Attorney General’s discretion, that

there are not reasonable grounds for regarding the alien as a

danger to the security of the U.S. (see Matter of S-K-, 23 I&N

Dec. 936 (BIA 2006)); or

(f) the alien was firmly resettled in another country prior to

arriving in the U.S.

i) In Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011), the

Board clarified the firm resettlement determination by

establishing a four-step process. In the first step, DHS
page 137 of 365

has the initial burden to make a prima facie showing of

an offer of firm resettlement by (1) presenting direct

evidence of an alien’s ability to stay in a country

indefinitely; or (2) when direct evidence is unavailable,

indirect evidence may be used if it has a sufficient level

of clarity and force to establish that the alien is able to

permanently reside in the country. Id. at 501-02. Direct

evidence “may include evidence of refugee status, a

passport, a travel document, or other evidence

indicative of permanent residence.” Id. at 502. Indirect

evidence may include the immigration or refugee laws

of the country of proposed resettlement, receipt of

government benefits or assistance, or other factors. Id.

“The firm resettlement inquiry ends if the DHS fails to

present prima facie evidence of an offer of firm

resettlement or the record does not otherwise establish

the existence of an offer of firm resettlement.” Id. at

503. If the DHS satisfies its initial burden, the analysis

moves on to the second step where the alien can rebut

the prima facie evidence of an offer of firm resettlement

“by showing by a preponderance of the evidence that

such an offer has not, in fact, been made or that he or

she would not qualify for it.” Id. “In the third step, the

Immigration Judge will consider the totality of the

evidence presented by the parties to determine whether

an alien has rebutted the DHS’s evidence of an offer of

firm resettlement. If the Immigration Judge finds that

the alien has not rebutted the DHS’s evidence, the

Immigration Judge will find the alien firmly resettled.”

Id. In the fourth and final step, the burden shifts to the

alien to establish that an exception to firm resettlement

applies by a preponderance of the evidence. Id.

ii) 8 C.F.R. § 1208.15 provides that an alien is considered 

to be firmly resettled if, prior to arrival in the U.S., he

or she entered into another nation, with or while in that

nation received, an offer of permanent resident status,

citizenship, or some other type of permanent

resettlement unless he or she establishes that his entry

into that nation was a necessary consequence of his

flight from persecution, that he remained in the country

only as long as was necessary to arrange onward travel,

and that he did not establish significant ties in that

nation; or that the conditions of his residence in that

nation were so substantially and consciously restricted

by the authority of the country of refuge that he was not
page 138 of 365

in fact resettled. In making the determination, the

Asylum Officer (AO) or IJ shall consider the conditions

under which other residents of the country live, the type

of housing made available to the refugee, whether

permanent or temporary, the types and extent of

employment available to the refugee, and the extent to

which the refugee received permission to hold property

and to enjoy other rights and privileges, such as travel

documentation including a right of entry or reentry,

education, public relief, or naturalization, ordinarily

available to other residents in the country.

iii) The Board held that North Koreans who have become

citizens of South Korea can permissibly be precluded

on firm resettlement grounds from asylum, despite the

North Korean Human Rights Act of 2004, which

provides that North Koreans cannot be barred from

asylum on account of any legal right to citizenship in

South Korea. Matters of K-R-Y- & K-C-S-, 24 I&N

Dec. 133 (BIA 2007).

(3) The Attorney General may designate by regulation offenses that

will be considered to be either a particularly serious crime or a

serious nonpolitical crime. INA § 208(b)(2)(B)(ii).

(4) The Attorney General may by regulation establish additional

limitations and conditions under which an alien shall be ineligible

for asylum under section 208(b)(2)(C).

4. Asylum procedure. The Attorney General shall establish a procedure for the

consideration of asylum applications filed under section 208. INA §

208(d)(1).

a. At the time of filing an application for asylum, the Attorney General

shall advise the alien of the privilege of being represented by counsel

and of the consequences of knowingly filing a frivolous application for

asylum and provide the alien a list of persons who have indicated their

availability to represent the aliens in asylum proceedings on a pro bono

basis. INA § 208(d)(4).

b. If the Attorney General determines that an alien has knowingly made a

frivolous application for asylum and the alien has received the notice

under section 208(d)(4)(A) of the consequences of knowingly filing a

frivolous application for asylum, the alien shall be permanently

ineligible for any benefits under the Act, effective as of the date of a

final determination of such application. INA § 208(d)(6).
page 139 of 365

(1) 8 C.F.R. § 1208.20 provides that, for applications filed on or after

April 1, 1997, an applicant is subject to the consequences set forth

in section 208(d)(6) only if a final order by an IJ or the Board

specifically finds that the alien knowingly filed a frivolous asylum

application.

(2) Definition of “frivolous.” For purposes of 8 C.F.R. § 1208.20 and

section 208(d)(6) of the Act, an asylum application is frivolous if

any material elements is deliberately fabricated. Such finding shall

only be made if the IJ or Board is satisfied that the applicant,

during the course of the proceedings, has had sufficient opportunity

to account for any discrepancies or implausible aspects of the

claim. 8 C.F.R. § 1208.20.

(3) A finding that an alien filed a frivolous asylum application does

not preclude the alien from seeking withholding of removal. 8

C.F.R. § 1208.20.

(4) Although the Board in Matter of Y-L-, 24 I&N Dec. 151 (BIA

2007), suggested that it might be “good practice” for an IJ who

believes that an applicant may have submitted a frivolous asylum

application to bring this issue to the attention of the applicant prior

to the conclusion of proceedings, this suggestion was not meant to

require that an IJ must provide additional warnings during the

course of the merits hearing that a frivolousness determination is

being considered. Matter of B-Y-, 25 I&N Dec. 236, 241-42 (BIA

2010). Sufficient notice is afforded when the IJ explains the

consequences of filing a frivolous asylum application, either at the

time the asylum application is filed or prior to commencement of

the merits hearing. Id.

(5) The Board has held that, when making a finding of frivolousness,

an IJ must: (1) address the question of frivolousness separately and

make specific findings that the applicant deliberately fabricated

material elements of the asylum claim; (2) give the applicant

sufficient opportunity to account for discrepancies or implausible

aspects of the claim; and (3) provide cogent and convincing

reasons for determining that a preponderance of the evidence

supports a frivolousness finding, taking into account any

explanations by the applicant for discrepancies or implausible

aspects of the claim. Matter of Y-L-, 24 I&N Dec. 151 (BIA

2007).

(6) In making a frivolousness determination, an IJ may incorporate by

reference any factual findings made in support of an adverse
page 140 of 365

credibility finding, so long as the IJ makes explicit findings that the

incredible aspects of the asylum application were material and

were deliberately fabricated. Matter of B-Y-, 25 I&N Dec. 236

(BIA 2010) (clarifying Matter of Y-L-, 24 I&N Dec. 151 (BIA

2007)). 

(7) In Yan Liu v. Holder, 640 F.3d 918 (9th Cir. 2011), the Ninth

Circuit vacated a Board finding that the alien filed a frivolous

asylum claim, reasoning that the heightened requirements for a

frivolous finding established by Matter of Y-L- were not satisfied. 

The court held that the alien was not afforded sufficient

opportunity to account for the discrepancies and implausibilities in

the claim because the IJ announced only at the end of the hearing

that she intended to make a frivolous finding. 

(8) The Eleventh Circuit held that making intentional and material

misrepresentations on an earlier asylum application will disqualify

an alien even if he recanted the fraudulent claims in a second

application. Barreto-Claro v. Att’y Gen., 275 F.3d 1334 (11th Cir.

2001). In the first asylum application, the alien claimed to have

left Cuba and come directly to the U.S. In the revised application,

he admitted that he had been granted refugee status in Costa Rica.

c. Section 208(d)(5)(A) requires that the procedure established under

section 208((d)(1) shall provide that:

(1) asylum cannot be granted until the identity of the applicant has

been checked against all appropriate records or databases

maintained by the Attorney General and by the Secretary of State,

including the Automated Visa Lookout System, to determine any

grounds on which the alien may be inadmissible to or deportable

from the U.S., or ineligible to apply for or be granted asylum;

(2) in the absence of exceptional circumstances, the initial interview or

hearing on the asylum application shall commence not later than 45

days after the date an application is filed;

(3) in the absence of exceptional circumstances, final administrative

adjudication of the asylum application, not including

administrative appeal, shall be completed within 180 days after the

date the application is filed;

(4) any administrative appeal shall be filed within 30 days of a

decision granting or denying asylum, or within 30 days of the

completion of removal proceedings before an IJ under section 240,

whichever is later; and
page 141 of 365

(5) in the case of an applicant for asylum who fails without prior

authorization or in the absence of exceptional circumstances to

appear for an interview or hearing, the application may be

dismissed or the applicant may be otherwise sanctioned for such

failure.

(6) Section 208(d)(5)(B) states that the Attorney General may provide

by regulation for any other conditions or limitations on the

consideration of an application for asylum not inconsistent with the

Act.

5. Burden of proof. The burden of proof is on the applicant for asylum to

establish that he or she is a refugee as defined in section 101(a)(42) of the Act. 

The testimony of the applicant, if credible, is sufficient to sustain the burden

of proof without corroboration. 8 C.F.R. § 1208.13(a).

a. For applications made on or after May 11, 2005, the REAL ID Act of

2005 states that the testimony of the applicant may be sufficient to

sustain the applicant’s burden without corroboration, but only if the

applicant satisfies the trier of fact that the applicant’s testimony is

credible, is persuasive and refers to specific facts sufficient to

demonstrate that the applicant is a refugee. In determining whether the

applicant has met his or her burden, the trier of fact may weigh the

credible testimony along with other evidence of record. Where the trier

of fact determines that the applicant should provide evidence that

corroborates otherwise credible testimony, such evidence must be

provided unless the applicant does not have the evidence and cannot

reasonably obtain the evidence. INA § 208(b)(1)(B)(ii) (as amended by

the REAL ID Act of 2005). 

(1) The provisions regarding credibility determinations enacted in

section 101(a)(3) of the REAL ID Act of 2005 (codified at section

208(b)(1)(B)(iii)) only apply to applications for asylum,

withholding, and other relief from removal that were initially filed

on or after May 11, 2005, whether with an asylum officer or an IJ. 

Matter of S-B-, 24 I&N Dec. 42 (BIA 2006). Where an alien filed

his applications for relief prior to May 11, 2005, but renewed his

applications in removal proceedings before an IJ subsequent to that

date, the provisions of 208(b)(1)(B)(iii) are not applicable to

credibility determinations made in adjudicating his applications. 

Id. 

b. The Lautenberg Amendment sets forth a reduced burden of proof for

certain categories of aliens, including Evangelical Christians from the

former Soviet republics, who are seeking refugee status. In Yakimchuck

v. INS, No. 73219477, 1999 WL 594933 (7th Cir. Aug. 6, 1999)

(unpublished), the court agreed with the IJ and the Board that the
page 142 of 365

respondent, in seeking asylum, cannot avail himself of the lower burden

of proof established by the Lautenberg Amendment. However, the

Board could properly consider the legislative history of the Amendment,

which may suggest that Evangelical Christians are persecuted as a group

in Ukraine. The case was remanded to allow the IJ and Board to

determine if the Amendment is of probative value, and if so, whether the

respondent has a well-founded fear of persecution. The Lautenberg

Amendment expired in June of 2011, and it is unclear whether it will be

reauthorized.

6. Past persecution. 8 C.F.R. § 1208.13(b)(1) provides that an applicant shall be

found to be a refugee on the basis of past persecution if he can establish that

he has suffered persecution in the past in his country of nationality or last

habitual residence on account of race, religion, nationality, membership in a

particular social group, or political opinion, and that he is unable or unwilling

to return to or avail himself of the protection of that country owing to such

persecution.

a. The Board has held that, when evaluating an asylum application, the IJ

must make a specific finding on whether the applicant has suffered past

persecution based on a statutorily enumerated ground and then apply the

regulatory framework at 8 C.F.R. § 1208.13(b)(1). If past persecution is

established, then the burden shifts to the DHS to prove by a

preponderance of the evidence that there are changed country conditions,

or that the applicant could avoid future persecution by relocating, and

that relocation is reasonable under the circumstances. Matter of D-I-M-,

24 I&N Dec. 448 (BIA 2008).

b. See pages 153-187 below for case law common to asylum and

withholding of removal law.

7. Well-Founded Fear of Future Persecution

a. 8 C.F.R. § 1208.13(b)(1)(i) provides that if it is determined that the

applicant has established past persecution, he or she shall be presumed

also to have a well-founded fear of persecution unless a preponderance

of the evidence establishes that since the time the persecution occurred

conditions in the applicant's country of nationality or last habitual

residence have changed to such an extent that the applicant no longer has

a well-founded fear of being persecuted if he were to return.

(1) Under 8 C.F.R. § 1208.13(b)(1)(i), where an asylum applicant has

shown that he has been persecuted in the past on account of a

statutorily-protected ground, and the record reflects that country

conditions have changed to such an extent that the asylum

applicant no longer has a well-founded fear of persecution from his

original persecutors, the applicant bears the burden of
page 143 of 365

demonstrating that he has a well-founded fear of persecution from

any new source. Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998).

b. If the applicant cannot demonstrate past persecution, he may establish

his eligibility for asylum if he (1) has a fear of persecution on account of

race, religion, nationality, membership in a particular social group, or

political opinion; (2) there is a reasonable possibility that he would

suffer such persecution if returned to his country of nationality; and (3)

he is unable or unwilling to avail himself of the protection of that

country based on his fear. 8 C.F.R. § 1208.13(b)(2)(i)(A)-(C). To

establish a well-founded fear of persecution, an applicant must present

credible testimony that demonstrates that his fear of harm is of a level

that amounts to persecution, that the harm is on account of a protected

characteristic, that the persecutor could become aware or is already

aware of the characteristic, and that the persecutor has the means and

inclination to persecute. See Matter of Mogharrabi, 19 I&N Dec. 439,

446 (BIA 1987); see also Acosta, 19 I&N Dec. at 226. A well-founded

fear of persecution must be both subjectively genuine and objectively

reasonable. Cardoza-Fonseca, 480 U.S. at 430-31. An applicant may

establish a subjective fear of persecution based on credible testimony. 

See Acosta, 19 I&N Dec. at 221. To meet the objective component, the

respondent must show by specific and concrete evidence in the record

that his fear of persecution is reasonable. See 8 C.F.R. § 1208.13; see

also Cardoza-Fonseca, 480 U.S. 421.

c. 8 C.F.R. § 1208.13(b)(1)(iii) provides that an application for asylum

shall be denied if the applicant establishes past persecution but it is also

determined that he does not have a well-founded fear of future

persecution, unless it is determined that the applicant has demonstrated

compelling reasons for being unwilling to return to his country of

nationality or last habitual residence arising out of the severity of the

past persecution. If the applicant demonstrates such compelling reasons,

he may be granted asylum unless such a grant is barred by 8 C.F.R. §

1208.13(c).

(1) An alien who has demonstrated past persecution is not separately

required by 8 C.F.R. § 1208.13(b)(1)(ii) to demonstrate compelling

reasons for being unwilling to return to his or her country of

nationality or habitual residence in order to be granted asylum. 

Rather, he or she is considered to have established eligibility for

asylum both on account of the past persecution which has been

demonstrated and the well-founded fear of future persecution

which is presumed. The need to demonstrate compelling reasons

for being unwilling to return resulting from the severity of the past

persecution suffered by the applicant only arises if the presumption

of a well-founded fear of future persecution is successfully

rebutted. Matter of H-, 21 I&N Dec. 337 (BIA 1996). To
page 144 of 365

overcome the regulatory presumption, the record must reflect, by a

preponderance of the evidence, that since the time the persecution

occurred, conditions in the applicant’s country of nationality or last

habitual residence have changed to such an extent that the

applicant no longer has a well-founded fear of being persecuted if

he or she were to return to that country. As a practical matter, it

will be the Service’s burden to rebut the presumption, whether by

adducing additional evidence or resting upon evidence already in

the record. Id. at 346.

(a) The Ninth Circuit held that the IJ’s finding of changed

country conditions because the leader of the asylum

applicant’s political party was elected president of Kenya was

improper because the IJ relied on the 2002 Department of

State Report for Kenya, which covered only one day after the

new president was sworn in and did not provide substantial

evidence that there was a fundamental change of conditions

in Kenya. Mutuku v. Holder, 600 F.3d 1210 (9th Cir. 2010).

(b) The Ninth Circuit held that the IJ’s finding that the

government rebutted the presumption of a well-founded fear

of returning to Fiji in light of reports showing improved

country conditions was not supported by substantial evidence. 

Ali v. Holder, 637 F.3d 1025 (9th Cir. 2011). The court

reasoned that the IJ and the Board failed to make an

individualized determination of how the changed country

conditions affected the alien’s specific harms and

circumstances. The court also found that the Board erred in

denying the motion to reopen, which was based on new

evidence of a 2006 coup, because the Board did not consider

how the new evidence could have made it more difficult for

the government to rebut the presumption of a well-founded

fear of future persecution. 

(c) The Eleventh Circuit held that the presumption had not been

rebutted where the country report relied on by the Board

made no mention of the alien’s home province, where the

past incidents of persecution had occurred and, although there

was an indication of improvement, the report made it clear

that religious violence still occurred. Imelda v. Att’y Gen.,

611 F.3d 724 (11th Cir. 2010).

(2) The Second Circuit found that the IJ had impermissibly shifted the

burden to the respondent to rebut the presumption of a wellfounded fear. The alien’s temporary return trips to a country after

experiencing past persecution did not, in and of themselves, rebut
page 145 of 365

the presumption of a well-founded fear of persecution. See Kone

v. Holder, 596 F.3d 141 (2d Cir. 2010).

(3) An asylum applicant who no longer has a well-founded fear of

persecution due to changed country conditions may still be eligible

for a discretionary grant of asylum under 8 C.F.R.

§ 1208.13(b)(1)(iii) only if he establishes, as a threshold matter,

compelling reasons for being unwilling to return to his country of

nationality or last habitual residence arising out of the severity of

the past persecution. Matter of N-M-A-, 22 I&N Dec. 312 (BIA

1998); Matter of H-, 21 I&N Dec. 337 (BIA 1996). Central to a

discretionary finding in past persecution cases should be careful

attention to compelling, humanitarian considerations that would be

involved if the refugee were to be forced to return to the country

where he or she was persecuted in the past. Matter of H-, 21 I&N

Dec. 337 (BIA 1996). Board case law also recognizes that general

humanitarian reasons, independent of the circumstances that led to

the applicant’s refugee status, such as age, health, or family ties

should also be considered in the exercise of discretion. Matter of

Pula, 19 I&N Dec. 467, 474 (BIA 1987), superseded by statute on

other grounds as recognized by Andriasian v. INS, 180 F.3d 1033

(9th Cir. 1999). Although the totality of circumstances and actions

of an alien in his or her flight from the country where persecution

was suffered to the United States are to be considered, the danger

of persecution should generally outweigh all but the most

egregious of adverse factors. Matter of Pula, 19 I&N Dec. 467

(BIA 1987); Matter of H-, 21 I&N Dec. 337 (BIA 1996).

(a) In Matter of Chen, 20 I&N Dec. 16 (BIA 1989), the asylum

applicant’s suffering began when he was 8 years old and

continued until his adulthood. He endured physical,

psychological, and social harm. He was permanently

physically and emotionally scarred. Therefore, he was

granted asylum for humanitarian reasons, notwithstanding the

fact that there was little likelihood of future persecution.

(b) In Matter of B-, 21 I&N Dec. 66 (BIA 1995), the Board

found that where the applicant had suffered 3 months

detention in KHAD facilities, 10 months detention in prison,

and 4 months involuntary military service, in addition to

suffering sleep deprivation, beatings, electric shocks, and the

routine use of physical torture and psychological abuse, the

persecution was so severe that his asylum application should

be granted notwithstanding the change of circumstances in

Afghanistan.
page 146 of 365

(c) In Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998), the

Board acknowledged the traumatic sequence of events that

the applicant witnessed and experienced from his month-long

detention and beatings and from the disappearance and likely

death of his father. However, given the degree of harm

suffered by the applicant, the length of time over which the

harm was inflicted, and the lack of evidence of severe

psychological trauma stemming from the harm, the Board

concluded that the applicant had not shown compelling

reasons arising out of the severity of the past persecution for

being unable or unwilling to return to Afghanistan.

(d) It is appropriate to consider in the exercise of discretion

whether an applicant, who is eligible for asylum based on a

well-founded fear of persecution, has the ability and can

reasonably be expected to relocate in his or her home country. 

Matter of R-, 20 I&N Dec. 621 (BIA 1992). Where the wellfounded fear is of a nongovernmental authority, the question

arises as to whether that authority has the ability to persecute

the applicant throughout the home country and whether the

applicant would have to pass through any unsafe part of the

country. If the Service contends that an applicant would not

face persecution throughout the entire country, the Service

should clarify how it accomplishes the deportation of such

individuals to a protected area. Matter of H-, 21 I&N Dec.

337, 349 n.7 (BIA 1996).

8. Discretion. Statutory and regulatory eligibility for asylum, whether based on

past persecution or a well-founded fear of future persecution, does not

necessarily compel a grant of asylum. An applicant for asylum has the burden

of establishing that the favorable exercise of discretion is warranted. Matter

of Pula, 19 I&N Dec. 467 (BIA 1987), superseded by statute on other grounds

as recognized by Andriasian v. INS, 180 F.3d 1033 (9th Cir. 1999); Matter of

Shirdel, 19 I&N Dec. 33 (BIA 1984). Factors which fall short of the grounds

for mandatory denial may constitute discretionary considerations. In

exercising discretion, the Board has considered it appropriate to examine the

totality of the circumstances and actions of an alien in his or her flight from

the country where persecution is feared. Matter of Pula, 19 I&N Dec. 467

(BIA 1987). See Junming Li v. Holder, --- F.3d ----, No. 07-71027, 2011 WL

3850050 (9th Cir. Sept. 1, 2011).

a. Aliens who have committed violent or dangerous crimes will not be

granted asylum, even if they are technically eligible for such relief,

except in extraordinary circumstances, such as those involving national

security or foreign policy considerations, or cases in which an alien

clearly demonstrates that the denial of relief would result in exceptional

and extremely unusual hardship. Depending on the gravity of the alien’s
page 147 of 365

underlying criminal offense, such a showing of exceptional and

extremely unusual hardship might still be insufficient. Matter of Jean,

23 I&N Dec. 373 (A.G. 2002).

b. When an IJ denies asylum solely in the exercise of discretion and then

grants withholding of removal, 8 C.F.R. § 1208.16(e) requires the IJ to

reconsider the denial of asylum to take into account factors relevant to

family unification. Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).

9. Termination of asylum. Section 208(c)(2) provides that asylum granted under

section 208(b) does not convey a right to remain permanently in the U.S. and

may be terminated if the Attorney General determines that:

a. The alien no longer meets the conditions described in section 208(b)(1),

i.e. being a refugee, owing to a fundamental change in circumstances.

b. the alien meets a condition described in section 208(b)(2), i.e.

particularly serious crime, etc.;

c. the alien may be removed, pursuant to a bilateral or multilateral

agreement, to a country (other than the country of the alien's nationality

or last habitual residence) in which the alien's life or freedom would not

be threatened on account of race, religion, nationality, membership in a

particular social group, or political opinion, and where the alien is

eligible to receive asylum or equivalent temporary protection;

d. the alien has voluntarily availed himself of the protection of the alien's

country of nationality or last habitual residence by returning to such

country with permanent resident status or the reasonable possibility of

obtaining such status with the same rights and obligations pertaining to

other permanent residents of that country; 

e. the alien has acquired a new nationality and enjoys the protection of the

country of his new nationality.

f. However, if the alien is eligible to adjust status under section 209 of the

Act, the IJ may adjust the respondent’s status rather than terminating his

asylee status. Matter of K-A-, 23 I&N Dec. 661 (BIA 2004).

 

10. Adjustment of status by refugees or aliens granted asylum.

a. Aliens admitted as refugees. 

(1) Section 209(a)(1) of the Act provides that any alien who has been

admitted to the U.S. under section 207 of the Act (i.e. as a refugee)

shall, at the end of a 1 year period, return or be returned to the
page 148 of 365

custody of INS for inspection and examination for admission to the

U.S. as an immigrant provided:

(a) The alien's admission has not been terminated by the

Attorney General [INA § 209(a)(1)(A)];

(b) The alien has been physically present in the U.S. for at least 1

year [INA § 209(a)(1)(B)];

(c) The alien has not acquired permanent resident status [INA §

209(a)(1)(C)].

(2) Any alien who is found upon inspection and examination by an

immigration officer or an IJ to be admissible as an immigrant shall

be regarded as an LPR as of the date of the alien’s arrival in the

U.S. notwithstanding any numerical limitation in the Act. INA §

209(a)(2).

(3) Aliens found inadmissible may apply for a waiver of

inadmissibility under section 209(c) of the Act discussed below.

b. Aliens granted asylum.

(1) Section 209(b) of the Act provides that not more than 10,000

refugee admissions under section 207(a) per fiscal year may be

made available by the Attorney General to adjust to LPR status any

asylee who:

(a) Applies for such adjustment,

(b) Has been physically present in the U.S. for at least one year

after being granted asylum,

(c) Continues to be a refugee as defined in section 101(a)(42)(A)

of the Act or the spouse or child of such a refugee,

(d) Is not firmly resettled in any foreign country, and

i) See pages 136-138 above for full discussion of firm

resettlement.

(e) Is admissible as an immigrant.

i) Aliens found inadmissible may apply for a waiver of

inadmissibility under section 209(c) of the Act

discussed below.
page 149 of 365

(2) If the application is granted, the Attorney General shall establish a

record of the alien's admission as a LPR as of the date 1 year before

the approval of the application.

c. Aliens found to be inadmissible.

(1) Section 209(c) of the Act provides that in determining an alien's

admissibility under both section 209(a)(1) and section 209(b), the

following grounds of inadmissibility shall not apply:

(a) Section 212(a)(4) - an alien likely to become a public charge.

(b) Section 212(a)(5) - an alien not in possession of a labor

certification.

(c) Section 212(a)(7)(A) - an immigrant not in possession of a

valid unexpired immigrant visa or other entry document or

not in possession of a valid unexpired passport or other travel

document or whose visa has been issued without compliance

with section 203 of the Act.

(2) Except for those provisions of section 212(a) listed below, section

209(c) allows the Attorney General to waive any other provisions

of section 212(a) for the following reasons:

(a) For humanitarian reasons,

(b) To assure family unity, or

(c) When it is otherwise in the public interest.

(3) However, section 209(c) provides that the following grounds of

section 212(a) may NOT be waived:

(a) 212(a)(2)(C) - an alien who the consular or immigration

officer knows or has reason to believe is an illicit trafficker in

controlled substances;

(b) 212(a)(3)(A) - an alien who a consular officer or the Attorney

General knows or has reasonable ground to believe seeks to

enter the U.S. to violate any law of the U.S. relating to

espionage or sabotage or to violate any law prohibiting the

export of goods, technology, or sensitive information, or to

engage in any activity to overthrow the Government of the

U.S., or any other unlawful activity;
page 150 of 365

(c) 212(a)(3)(B) - an alien who has engaged or is likely to engage

in terrorist activity;

(d) 212(a)(3)(C) - an alien whose entry or proposed activity in

the U.S. would adversely affect foreign policy;

(e) 212(a)(3)(E) - an alien who participated in persecution by the

Nazi government of Germany or its allies.

(4) An alien who previously adjusted from refugee status to that of an

LPR under section 209 of the Act, retains that status until a final

order of removal and is ineligible to readjust under section 209(b)

in conjunction with a 209(c) waiver as a form of relief from

removal. Robleto-Pastora v. Holder, 591 F.3d 1051 (9th Cir. 2010). 

d. Exercise of discretion. In evaluating the propriety of granting an

otherwise inadmissible alien a discretionary waiver under section 209(c)

of the Act, any humanitarian, family unity preservation, or public interest

considerations must be balanced against the seriousness of the criminal

offense that rendered the alien inadmissible. Matter of Jean, 23 I&N

Dec. 373 (A.G. 2002).

(1) Aliens who have committed violent or dangerous crimes will not

be granted a discretionary waiver under section 209(c) of the Act

except in extraordinary circumstances, such as those involving

national security or foreign policy considerations, or cases in which

an alien clearly demonstrates that the denial of adjustment of status

would result in exceptional and extremely unusual hardship. 

Depending on the gravity of the alien’s underlying criminal

offense, such a showing of exceptional and extremely unusual

hardship might still be insufficient. Matter of Jean, 23 I&N Dec.

373 (A.G. 2002).

H. Withholding of removal - Section 241(b)(3).

1. Section 241(b)(3)(A) provides that the Attorney General may not remove an

alien to a country if the Attorney General decides that the alien's life or

freedom would be threatened in that country because of the alien's race,

religion, nationality, membership in a particular social group, or political

opinion.

a. The Board held in Matter of I-S- & C-S-, that before an IJ can issue a

decision granting withholding of removal, without a grant of asylum, he

or she must first enter an explicit removal order. Matter of I-S & C-S-,

24 I&N Dec. 432 (BIA 2008).
page 151 of 365

2. Exceptions. Section 241(b)(3)(B) provides that section 241(b)(3)(A) does not

apply to an alien deportable under section 237(a)(4)(D) [assisted in Nazi

persecution or engaged in genocide] or if the Attorney General decides that:

a. the alien ordered, incited, assisted, or otherwise participated in the

persecution of any person on account of race, religion, nationality,

membership in a particular social group, or political opinion;

b. the alien, having been convicted by a final judgment of a particularly

serious crime, constitutes a danger to the community of the U.S.;

(1) An alien who has been convicted of an aggravated felony (or

felonies) for which the alien has been sentenced to an aggregate

term of imprisonment of at least 5 years shall be considered to have

committed a particularly serious crime. INA § 241(b)(3)(B).

(2) This shall not preclude the Attorney General from determining

that, notwithstanding the length of sentence imposed, an alien has

been convicted of a particularly serious crime. INA § 

241(b)(3)(B).

(3) The Seventh Circuit ruled that, to qualify as a particularly serious

crime under section 241(b)(3)(B)(ii), an offense need not be an

aggravated felony under section 101(a)(43). Ali v. Achim, 468

F.3d 462 (7th Cir. 2006).

(4) The Third Circuit ruled that, to qualify as a particularly serious

crime under section 241(b)(3)(B)(ii), an offense must be an

aggravated felony under section 101(a)(43). Alaka v. Att’y Gen.,

456 F.3d 88 (3d Cir. 2006).

(5) The Board ruled that, to qualify as a particularly serious crime

under section 241(b)(3)(B)(ii), an offense need not be an

aggravated felony under section 101(a)(43). This holding accords

with Ali v. Achim, 468 F.3d 462 (7th Cir. 2006), but contradicts

Alaka v. Att’y Gen., 456 F.3d 88 (3d Cir. 2006). The Board

further ruled that, if the elements of an offense “potentially bring it

within the ambit of” a particularly serious crime, all reliable

information may be considered in determining whether the offense

is a particularly serious crime, including the conviction records,

sentencing information, and other information outside the record of

conviction. Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007).

c. there are serious reasons for believing that the alien has committed a

serious nonpolitical crime outside the U.S. prior to the arrival of the

alien in the U.S.; or
page 152 of 365

d. there are reasonable grounds for regarding the alien as a danger to the

security of the U.S.

(1) An alien described in section 237(a)(4)(B) shall be considered to

be an alien with respect to whom there are reasonable grounds for

regarding the alien as a danger to the security of the U.S. INA §

241(b)(3)(B).

3. The burden of proof is on the applicant for withholding of removal to establish

that his or her life or freedom would be threatened in the proposed country of

removal on account of one of the five reasons set forth above. 8 C.F.R. §

1208.16(b). That regulation also provides that the testimony of the applicant,

if credible, may be sufficient proof without corroboration.

a. For applications made on or after May 11, 2005, the REAL ID Act of

2005 provides that in determining whether an alien has demonstrated

that the alien’s life or freedom would be threatened on account of one of

the five enumerated grounds, the trier of fact shall determine whether the

alien has sustained his or her burden of proof and shall make credibility

determinations in the manner described in section 208(b)(1)(B)(ii) and

(iii) (as amended by the REAL ID Act of 2005). See pages 141-142

above for comparison to asylum burden of proof.

4. The applicant’s life or freedom shall be found to be threatened if it is more

likely than not that he or she would be persecuted. 8 C.F.R. § 1208.16(b)(1).

5. Past persecution. If the applicant is determined to have suffered persecution in

the past such that his or her life or freedom was threatened in the proposed

country of removal on account of race, religion, nationality, membership in a

particular social group, or political opinion, it shall be presumed that his or her

life or freedom would be threatened on return to that country unless a

preponderance of the evidence establishes that conditions in that country have

changed to such an extent that it is no longer more likely than not that the

applicant would be so persecuted. 8 C.F.R. § 1208.16(b)(1)(i). If the

applicant’s fear is unrelated to the past persecution, the applicant bears the

burden of establishing that it is more likely than not that he or she would

suffer such harm. 8 C.F.R. § 1208.16(b)(1)(iii).

6. 8 C.F.R. § 1208.16(b)(2) provides that in evaluating whether the applicant has

sustained the burden of proving that his or her life or freedom would be

threatened in that country on account of race, religion, nationality,

membership in a particular social group, or political opinion, the AO or IJ

shall not require the applicant to provide evidence that he or she would be

singled out individually for such persecution if the applicant establishes that

there is a pattern or practice in the country of proposed removal of persecution

of a group of persons similarly situated to the applicant on account of race,

religion, nationality, membership in a particular social group, or political
page 153 of 365

opinion and the applicant establishes his or her own inclusion in and

identification with such group of persons such that it is more likely than not

that his or her freedom would be threatened upon return.

7. The “one central reason” in so-called mixed motive cases that applies to

asylum applications pursuant to section 208(b)(1)(B)(i) also applies to

applications for withholding of removal under section 241(b)(3)(A) of the Act. 

Matter of C-T-L-, 25 I&N Dec. 341 (BIA 2010).

I. Case law common to both asylum and withholding of removal

1. Reasonable grounds for regarding the alien as a danger to the security of the

U.S.

a. The “reasonable ground to believe” standard is akin to the “probable

cause” standard. A “reasonable belief” may be formed if the evidence

“is sufficient to justify a reasonable person in the belief that the alien

falls within the proscribed category.” Matter of U-H-, 23 I&N Dec. 355

(BIA 2002).

b. The addition of section 236A to the Act by section 412 of the Uniting

and Strengthening America by Providing Appropriate Tools Required to

Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56

(“USA Patriot Act”), which provides for the certification of certain

aliens as terrorists by the Attorney General, does not change the

standard employed to determine whether there is reasonable ground to

believe that an alien is engaged in, or is likely to engage in, terrorist

activity under section 212(a)(3)(B)(i)(II) of the Act, or whether there is

reasonable ground to believe that he or she is a danger to the security of

the U.S. under section 241(b)(3)(B)(iv) of the Act. The addition of

section 236A to the Act merely adds certification as another means to

address detention of suspected terrorist aliens. It does not indicate that

Congress wanted to change the standard of proof or make it easier for

terrorists to apply for asylum or withholding of removal. Matter of UH-, 23 I&N Dec. 355 (BIA 2002).

2. Particularly serious crimes.

a. History lesson - The text of the current withholding of removal provision

is based on the U.S.’s accession to the 1967 Protocol Relating to the

Status of Refugees, applying Articles 2 through 34 of the 1951 United

Nations Convention Relating to the Status of Refugees, adopted July 28,

1951, 189 U.N.T.S. 150 (entered into force April 22, 1954) 

(“Convention”), to all refugees, without regard to geographic or other

limitations contained in the Convention as to events occurring before

1951. Protocol, supra, Art. 1, para. 1; see also INS v. Cardoza-Fonseca,

480 U.S. 421, 436-37 (1987) (“If one thing is clear from the legislative
page 154 of 365

history of the new definition of ‘refugee,’ and indeed the entire 1980

Act, it is that one of Congress’ primary purposes was to bring United

States refugee law into conformance with the . . . Protocol . . . .”). 

Article 33 of the Convention provides that “[n]o Contracting State shall

expel or return (“refouler”) a refugee in any manner whatsoever to the

frontiers of territories where his life or freedom would be threatened,”

but that this protection “may not, however, be claimed by a refugee . . .

who, having been convicted by a final judgement of a particularly

serious crime, constitutes a danger to the community of that country. 

Convention, supra, Art. 33. The Board of Immigration Appeals

originally addressed the question of what would be a “particularly

serious crime” in Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982),

modified by Matter of C-, 20 I&N Dec. 529 (BIA 1992) and superseded

by statute as recognized by Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA

1996). In Matter of Frentescu, the Board held that “[i]n judging the

seriousness of a crime, we look to such factors as the nature of the

conviction, the circumstances and underlying facts of the conviction, the

type of sentence imposed, and, most importantly, whether the type and

circumstances of the crime indicate that the alien will be a danger to the

community.” Id. at 247. The Board stated that crimes against persons

are more likely to be categorized as particularly serious, but that there

may be instances where crimes (or a crime) against property will be

considered to be particularly serious. Id. Subsequently, in 1990,

Congress stated categorically that all aggravated felonies constitute

particularly serious crimes, rendering any alien convicted of an

aggravated felony ineligible for withholding of deportation. See former

INA § 243(h); see also Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA

1996). Congress’ declaration of this per se equation eliminated the basis

for conducting an individual analysis of the underlying facts and

circumstances of the crime in any case where the conviction was for an

aggravated felony. See Matter of Frentescu, 18 I&N Dec. 244 (BIA

1982); see also Matter of U-M-, 20 I&N Dec. 327 (BIA 1991), aff’d,

Urbina-Mauricio v. INS, 989 F.2d 1085 (9th Cir. 1993), modified by,

Matter of C-, 20 I&N Dec. 529 (BIA 1992). On April 24, 1996,

Congress enacted section 413(f) of the Antiterrorism and Effective

Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1269

(“AEDPA”), which expressly amended section 243(h) of the Act to

provide the Attorney General discretionary authority to override the

categorical bar that designated every aggravated felony a particularly

serious crime, if the Attorney General determined it necessary to do so in

order to comply with our nonrefoulement obligation under the Protocol. 

Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996). Soon thereafter, on

September 30, 1996, Congress enacted section 305(a) of the IIRIRA,

which again amended former section 243(h) of the Act and recodified it

as section 241(b)(3) of the Act, effective on or after April 1, 1997. In

construing the amendment of former section 243(h) in the context of a

deportation case, the Board had reasoned that section 413(f) of the
page 155 of 365

AEDPA was best read as introducing a narrow discretionary exemption

from the surviving exception, which precluded withholding of

deportation under section 243(h)(2)(B) of the Act. See Matter of Q-T-MT-, 21 I&N Dec. 639 (BIA 1996). The Board concluded that a

presumption that the existing statutory bar was in compliance with the

Protocol was necessary and appropriate because Congress did not revoke

the categorical bar to withholding that had been imposed in 1990. At

that time, taking guidance from the new standard set by Congress in

section 305(a) of the IIRIRA, applicable to proceedings initiated after

April 1, 1997, the Board interpreted section 413(f) of the AEDPA as

creating a “rebuttable presumption” that an alien convicted of an

aggravated felony for which a sentence of less than 5 years was imposed

has been convicted of a particularly serious crime. Consequently, the

Board held that in assessing eligibility for withholding of deportation, it

must be ascertained “whether there is any unusual aspect of the alien’s

particular aggravated felony conviction that convincingly evidences that

his or her crime cannot rationally be deemed ‘particularly serious’” in

light of United States treaty obligations under the Protocol. Matter of QT-M-T-, 21 I&N Dec. 639, 640 (BIA 1996); see also Matter of L-S-J-,

21 I&N Dec. 973 (BIA 1997). Congress’ most recent revision of the

“particularly serious crime” clause, in the IIRIRA, accomplished what

section 413(f) of the AEDPA had not: it eliminated the categorical

exception to withholding of removal for every alien convicted of an

aggravated felony. Conviction of an aggravated felony no longer renders

every such conviction a “particularly serious crime” per se, and the basis

on which the Board previously established a rebuttable presumption in

Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996) no longer exists.

b. Asylum. Section 208 (b)(2)(A)(ii) of the Act provides that asylum is not

available to an alien who, having been convicted by a final judgment of a

particularly serious crime, constitutes a danger to the community. 

Section 208(b)(2)(B)(i) of the Act provides that an alien who has been

convicted of an aggravated felony shall be considered to have been

convicted of a particularly serious crime.

c. Withholding. Section 241(b)(3)(B)(ii) of the Act provides that the relief

of withholding of removal is unavailable to an alien who, having been

convicted by a final judgment of a particularly serious crime, is a danger

to the community of the United States. Section 241(b)(3)(B) also

provides that an alien who has been convicted of an aggravated felony

(or felonies) for which the alien has been sentenced to an aggregate term

of imprisonment of at least five years shall be considered to have

committed a particularly serious crime. The statute goes on to state that

the “previous sentence shall not preclude the Attorney General from

determining that, notwithstanding the length of sentence imposed, an

alien has been convicted of a particularly serious crime.”
page 156 of 365

(1) Under section 241(b)(3)(B) of the Act, a determination of whether

an aggravated felony conviction constitutes a “particularly serious

crime” per se is based on the length of sentence imposed, rather

than on the category or type of aggravated felony conviction that

resulted in the conviction. Matter of S-S-, 22 I&N Dec. 458 (BIA

1999), distinguishing Matter of Gonzalez, 19 I&N Dec. 692 (BIA

1988).

(2) Under section 241(b)(3)(B) of the Act, there no longer exists a

rebuttable presumption that an alien convicted of an aggravated

felony for which a sentence of less than 5 years was imposed has

been convicted of a “particularly serious crime” rendering the alien

ineligible for withholding of deportation. Matter of S-S-, 22 I&N

Dec. 458 (BIA 1999). Instead, the statutory language now in effect

declares that an alien who has been convicted of an aggravated

felony and is sentenced to at least 5 years imprisonment has been

convicted of a particularly serious crime, but expressly affords the

Attorney General discretion to exercise judgment as to whether the

conviction is for a particularly serious crime when an alien has

been sentenced to less than 5 years for the very same offense. In

extending this authority to the Attorney General, Congress used

permissive language, stating that its conclusion that an alien

sentenced to at least 5 years had committed a particularly serious

crime “shall not preclude the Attorney General from determining

that, notwithstanding the length of sentence imposed, an alien has

been convicted of a particularly serious crime.” Congress neither

imposed any presumption that an aggravated felony carrying a

sentence of fewer than 5 years is a particularly serious crime, nor

called for any blanket exercise of the Attorney General’s authority

to determine the applicability of section 241(b)(3)(B)(ii) of the Act

in such cases. See INS v. Cardoza-Fonseca, 480 U.S. 421, 431

(1987) (addressing the proper construction of Congress’ use of

different language in different sections of the same act); see also

Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997).

(3) Under section 241(b)(3)(B)(ii) of the Act, a determination of

whether an alien convicted of an aggravated felony and sentenced

to less than 5 years imprisonment has been convicted of a

“particularly serious crime,” thus barring the alien from

withholding of removal, requires an individual examination of the

nature of the conviction, the sentence imposed, and the

circumstances and underlying facts of the conviction. Matter of SS-, 22 I&N Dec. 458 (BIA 1999); Matter of L-S-, 22 I&N Dec. 645

(BIA 1999), both of which followed Matter of Frentescu, 18 I&N

Dec. 244 (BIA 1982).
page 157 of 365

(4) An alien who was convicted of first degree robbery of an occupied

home while armed with a handgun and sentenced to 55 months

imprisonment has been convicted of an aggravated felony under

section 101(a)(43)(F) of the Act, and, upon consideration of the

nature of the conviction and the sentence imposed, as well as the

underlying facts and circumstances of the conviction, has been

convicted of a “particularly serious crime” rendering the alien

ineligible for withholding of removal under section

241(b)(3)(B)(ii) of the Act. Matter of S-S-, 22 I&N Dec. 458 (BIA

1999).

(5) An alien who was convicted of bringing an illegal alien into the U.

S. in violation of section 274(a)(2)(B)(iii) of the Act and sentenced

to 31⁄2 months imprisonment has, upon consideration of the nature

of the conviction and the sentence imposed, as well as the

underlying facts and circumstances of the conviction, not been

convicted of a “particularly serious crime” and is eligible to apply

for withholding of removal under section 241(b)(3)(B)(ii) of the

Act. Matter of L-S-, 22 I&N Dec. 645 (BIA 1999).

(6) The Board held that a crime need not be an aggravated felony to be

classified as “particularly serious” and bar eligibility for

withholding of removal. Matter of N-A-M-, 24 I&N Dec. 336

(BIA 2007). See also N-A-M v. Holder, 587 F.3d 1052 (10th Cir.

2009) (holding that a separate analysis as to whether the alien is a

danger to the community is not necessary when determining

whether a crime is particularly serious); Gao v. Holder, 595 F.3d

549 (4th Cir. 2010) (holding that unlawful export of military

technology was a particularly serious crime); Anaya-Ortiz v.

Holder, 594 F.3d 673 (9th Cir. 2010) (holding that Board properly

considered the petitioner’s removal hearing testimony in holding

that his conviction for drunk driving constituted a particularly

serious crime).

(7) The Attorney General held that aggravated felonies involving

unlawful trafficking in controlled substances presumptively

constitute “particularly serious crimes” within the meaning of

section 241(b)(3)(B) of the Act and only under the most

extenuating circumstances that are both extraordinary and

compelling would departure from this interpretation be warranted

or permissible. Matter of Y-L-, A-G-, and R-S-R-, 23 I&N Dec.

270 (A.G. 2002), overruled in part on other grounds as stated in

Rafiq v. Gonzales, 468 F.3d 165 (2d Cir. 2006).

(a) Those unusual circumstances would need to include, at a

minimum: 
page 158 of 365

i) a very small quantity of controlled substance; 

ii) a very modest amount of money paid for the drugs in

the offending transaction;

iii) merely peripheral involvement by the alien in the

criminal activity, transaction, or conspiracy;

iv) the absence of any violence or threat of violence

implicit or otherwise, associated with the offense;

v) the absence of any organized crime or terrorist

organization involvement, direct or indirect, in relation

to the offending activity; and

vi) the absence of any adverse or harmful effect of the

activity or transaction on juveniles.

vii) Only if all of these criteria were demonstrated by an

alien would it be appropriate to consider whether other,

more unusual circumstances (e.g., the prospective

distribution was solely for social purposes, rather than

for profit) might justify departure from the default

interpretation that drug trafficking felonies are

“particularly serious crimes.” Finally, the Attorney

General stated, “I emphasize here that such

commonplace circumstances as cooperation with law

enforcement authorities, limited criminal histories,

downward departures at sentencing, and post-arrest (let

alone post-conviction) claims of contrition or innocence

do not justify such a deviation.”

3. Serious nonpolitical crime. A serious nonpolitical crime is one in which the

common-law character of the crime outweighs the political aspect of the

offense. INS v. Aguirre-Aguirre, 526 U.S. 415 (1999). To reach this

determination, two specific inquiries must be asked: (1) whether there is a

gross disproportion between means and ends, and (2) whether atrocious acts

are involved. Id. Atrocious acts provide a clear indication that an alien's

offense is a serious nonpolitical crime. However, the criminal element of an

offense may outweigh its political aspect even if none of the acts are deemed

atrocious. Crimes directed at an unprotected civilian population are “beyond

the pale of a protectable political offense” in the context of eligibility for

withholding of deportation. McMullen v. INS, 788 F.2d 591 (9th Cir. 1986),

overruled on other grounds, Barapind v. Enomoto, 400 F.3d 744 (9th Cir.

2005). However, acts of terrorism directed at military or official agencies of a

state are distinguishable from random acts of violence intended “solely to
page 159 of 365

bring about social chaos, with the eventual demise of the state intended only

as an indirect result.” Id. 

a. Robbery is a serious nonpolitical crime. Matter of Rodriguez-Palma, 17

I&N Dec. 465 (BIA 1980).

b. Burglary and/or larceny is a serious nonpolitical crime; Matter of

Ballester-Garcia. 17 I&N Dec. 592 (BIA 1980). The alien was not

armed, but the crime involved a late night entry into a building, the alien

stole a large sum of money, the crime was planned weeks in advance,

and the alien received a 15 year sentence.

c. Serious non-political crimes under former section 243(h)(2)(C) of the

Act are not the equivalent of particularly serious crimes under former 

section 243(h)(2)(B) of the Act. A serious non-political crime may be

less serious than a particularly serious crime. See Matter of Frentescu,

18 I&N Dec. 244 (BIA 1982).

d. A serious non-political crime may involve crimes against property as

well as against persons; Matter of Ballester-Garcia, 17 I&N Dec. 592

(BIA 1980).

e. The Board has also held that the seriousness of a crime for purposes of

both former sections 243(h)(2)(B) and 243(h)(2)(C) does not vary from

case to case dependent upon the degree of persecution to which the

applicant may be subject. Matter of Rodriguez-Coto, 19 I&N Dec. 208

(BIA 1985).

f. It is not necessary to determine whether an applicant for withholding of

deportation has been convicted of, or even has actually committed, a

serious non-political crime. The statute provides that it is only necessary

to find that there are serious reasons for considering that he has

committed such a crime. Matter of Ballester-Garcia, 17 I&N Dec. 592

(BIA 1980).

4. What constitutes persecution?

a. Definition. The term “persecution” means harm or suffering that is

inflicted upon an individual in order to punish him for possessing a

belief or characteristic a persecutor seeks to overcome. Matter of

Acosta, 19 I&N Dec. 211 (BIA 1985), modified by Matter of

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

harm inflicted by the government or by persons or an organization the

government is unable or unwilling to control. Matter of Acosta, 19 I&N

Dec. 211 (BIA 1985).
page 160 of 365

b. Criminal prosecution is not persecution unless it is politically motivated. 

Matter of Maccaud, 14 I&N Dec. 429 (BIA 1973).

(1) Where an asylum applicant violates currency laws which a

government has a legitimate right to enforce, and he suffers harsh

treatment as a result, the applicant must show that the government

in question has punished him “on account of” his political opinion

and not for violation of the currency laws. Matter of H-M-, 20

I&N Dec. 683 (BIA 1993).

(2) Prosecution under Chinese laws forbidding citizens from providing

assistance to illegal immigrants from North Korea does not amount

to persecution unless the alien can demonstrate that the prosecution

is because of the alien’s political opinion. Li v. Att’y Gen., 633

F.3d 136 (3d Cir. 2011). 

c. The failure of a government to permit its citizens the same freedom of

speech guaranteed in the U.S. does not constitute persecution. Matter of

Surzycki, 13 I&N Dec. 261 (BIA 1969).

d. Generally harsh conditions shared by many others in a country and the

harm arising out of civil strife do not amount to persecution within the

meaning of the law. Matter of Sanchez and Escobar, 19 I&N Dec. 276

(BIA 1985); Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified

by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

e. A tax levied on all citizens of Peru who travel outside of that country is

not persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion as contemplated by the Act. 

Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978).

f. Although kidnapping is a very serious offense, the seriousness of

conduct is not dispositive in determining persecution, which does not

encompass all treatment that society regards as unfair, unjust, or even

unlawful or unconstitutional. Matter of V-T-S-, 21 I&N Dec. 792 (BIA

1997). While there may be a number of reasons for a kidnapping, an

asylum applicant bears the burden of establishing that one motivation

was to persecute him on account of an enumerated ground, and evidence

that indicates that the perpetrators were motivated by the victim’s

wealth, in the absence of evidence to suggest other motivations, will not

support a finding of persecution within the meaning of the Immigration

and Nationality Act. Id.

g. Harassment and discrimination do not generally rise to the level of

persecution contemplated by the Act (name calling, extortion of money,

payment of higher fees, rock throwing, and looting not sufficient to
page 161 of 365

demonstrate past persecution). Matter of A-M-, 23 I&N Dec. 737 (BIA

2005).

(1) A beating that occurs in the context of an arrest or detention may

constitute persecution. Beskovic v. Gonzales, 467 F.3d 223, 226

(2d Cir. 2006).

(2) A beating that occurs within the context of an arrest or detention

does not per se constitute persecution. Liu v. Holder, 632 F.3d 820

(2d Cir. 2011) (finding that the Board did not err when it

concluded that Liu’s mistreatment by family planning officials

resulting in minor bruising and two-day detention did not amount

to persecution). Past incidents of mistreatment, even if deplorable,

may not be of the degree that has been recognized as persecution. 

Mekhtiev v. Holder, 559 F.3d 725 (7th Cir. 2009) (holding past

persecution was not established where alien was detained for only

one night, was beaten only once and his resultant injuries were not

severe).

(3) Harm, in the aggregate, may rise to the level of persecution. Matter

of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998) (holding that alien

who suffered repeated beatings and anti-Semitic threats, whose

home was vandalized by anti-Semitic nationalists, and whose son

was subject to humiliation and intimidation on account of his

Jewish nationality suffered harm which, in the aggregate, rises to

the level of persecution); see Vincent v. Holder, 632 F.3d 351 (6th

Cir. 2011) (holding that cumulative effect of murder of alien’s son

and burning of alien’s home rises to the level of persecution).

(4) A key difference between persecution, as required to support an

asylum application, and less-severe mistreatment is that the former

is systematic while the latter consists of isolated incidents. 

Baharon v. Holder, 588 F.3d 228 (4th Cir. 2009) (holding that

violence or threats to one’s close relatives is an important factor in

deciding whether mistreatment sinks to the level of persecution). 

(5) Harms that are merely disagreeable or unpleasant do not rise to the

level of persecution. Morgan v. Holder, 634 F.3d 53 (1st Cir. 2011) 

(holding that the Board did not err when it found that being

taunted, cut by a bottle, detained overnight, and threatened did not

amount to persecution).

(6) Rape and sexual assault are forms of persecution. Matter of D-V-,

21 I&N Dec. 77 (BIA 1993).

(7) A victim of a criminal act is generally not considered persecuted

within the Act. Matter of V-T-S-, 21 I&N Dec. 792 (BIA 1997).
page 162 of 365

h. Persecution by an individual for personal reasons and not for one of the

reasons enumerated in the Act does not constitute persecution which

would qualify an alien for asylum or withholding of deportation. Matter

of Pierre, 15 I&N Dec. 461 (BIA 1975).

i. Nonphysical forms of harm, such as the deliberate imposition of severe

economic disadvantage or the deprivation of liberty, food, housing,

employment, or other essentials of life, may amount to persecution. 

Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).

(1) The burning of the respondent’s home on account of his political

opinion was sufficiently severe and targeted to amount to

persecution by economic deprivation. Vincent v. Holder, 632 F.3d

351 (6th Cir. 2011).

(2) The Fourth Circuit held that to establish “economic persecution,”

an asylum applicant must demonstrate that, on account of one of

the statutorily enumerated grounds, the applicant’s life or freedom

has been threatened by either (1) a deliberate and severe

deprivation of basic necessities or (2) a deliberate imposition of

severe financial disadvantage. Mirisawo v. Holder, 599 F.3d 391

(4th Cir. 2010). To qualify as persecution, economic deprivation

must be so severe that it threatens the person’s very life or liberty. 

Id. 

(3) The Seventh Circuit held that surveillance is a possible form of

persecution. Ayele v. Holder, 564 F.3d 862, 871 (7th Cir. 2009)

(citing Diallo v. Ashcroft, 381 F.3d 687, 697 (7th Cir. 2004)). The

court further recognized that an inability to work may constitute

persecution. Id. (citing Borca v. INS, 77 F.3d 210, 216 (7th Cir.

1996) for the proposition that deliberate imposition of substantial

economic disadvantage may amount to persecution).

(4) The Sixth Circuit held that the invalidation of a medical degree

constitutes economic persecution. Stserba v. Holder, 646 F.3d 964

(6th Cir. 2011) (finding that Estonia’s discrimination against ethnic

Russians in medical field culminated in invalidation of Russian

diplomas, which was a sweeping limitation of job opportunities

that made it nearly impossible for respondent to work in her chosen

profession as pediatrician).

j. Military service.

(1) Governments have the right to require military service of their

citizens and to enforce that right with reasonable penalties. It is

not persecution for a country to require military service or to
page 163 of 365

punish those who have deserted or who refuse to serve. Matter of

Vigil, 19 I&N Dec. 572 (BIA 1988); Matter of Lee, 13 I&N Dec.

236 (BIA 1969); Matter of Liao, 11 I&N Dec. 113 (BIA 1965).

(2) Absent a showing that the government of a country enacted its

conscription laws with the intent of persecuting members of a

certain religion, or that the laws are carried out in a persecutory

manner against persons with particular religious beliefs, an alien

with religious objections to military service does not establish

eligibility for asylum or withholding of deportation even though he

may be prosecuted for a refusal to perform military service. Matter

of Canas, 19 I&N Dec. 697 (BIA 1988), remanded 970 F.2d 599

(9th Cir. 1992).

k. Nongovernmental persecution.

(1) The Board has recognized that there may be situations in which an

alien could qualify for asylum and/or withholding of deportation

even though persecution would not be by the government of a

country to which the alien is returnable but rather by an

organization or even an individual. In order to prevail with such a

claim, however, there must be a showing that the government in

power in that country is either unable or unwilling to protect the

alien from the organization or individual. Matter of McMullen, 17

I&N Dec. 542, 548 (BIA 1980), rev’d on other grounds, 658 F.2d

1312 (9th Cir. 1981), on remand, Matter of McMullen, 19 I&N

Dec. 90 (BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986), overruled

in part on other grounds by Barapind v. Enomoto, 400 F.3d 744

(9th Cir. 2005); Matter of Pierre, 15 I&N Dec. 461 (BIA 1975).

(a) The Ninth Circuit held that reporting of private persecution to

the authorities is not an essential requirement for establishing

government unwillingness or inability to control attackers for

purposes of asylum. Rahimzadeh v. Holder, 613 F.3d 916

(9th Cir. 2010). A government’s inability or unwillingness to

control violence by private parties can be established in other

ways, such as by demonstrating that a country’s laws or

customs effectively deprive the alien of any meaningful

recourse to governmental protection. Id.; Afriyie v. Holder,

613 F.3d 924, 931 (9th Cir. 2010). However, “[w]hen an

applicant attempts to report persecution to the police or

request protection from them, the authorities’ response (or

lack thereof) to such requests may provide powerful evidence

with respect to the government's willingness or ability to

protect the requestor.” Id. 
page 164 of 365

(b) The Eighth Circuit held that “[A]n applicant seeking to

establish persecution by a government based on violent

conduct of a private actor must show more than difficulty

controlling private behavior. Rather, the applicant must show

that the government condoned it or at least demonstrated a

complete helplessness to protect the victims.” Menjivar v.

Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (internal

quotations and alterations omitted). The court held that

general problems of governmental ineffectiveness and

corruption do not, alone, require a finding that the

government is “unable or unwilling” where the evidence

specific to the petitioner indicates the contrary to be true. Id.;

Khilan v. Holder, 557 F.3d 583, 586 (8th Cir. 2009).

(2) Persecution by an individual for personal reasons and not for one

of the reasons enumerated in the Act does not constitute

persecution which would qualify an alien for asylum or

withholding of deportation. Matter of Pierre, 15 I&N Dec. 461

(BIA 1975).

l. Civil war and guerrilla activity.

(1) The term “persecution” does not encompass the harm that arises

out of civil or military strife. Matter of Acosta, 19 I&N Dec. 211

(BIA 1985), modified by Matter of Mogharrabi, 19 I&N Dec. 439

(BIA 1987).

(2) The dangers faced by policemen as a result of that status alone

because they are viewed as extensions of the government's military

forces or because they are highly visible embodiments of the power

of the state are not dangers faced on account of race, religion,

nationality, membership in a particular social group, or political

opinion. If it were held that a policeman or a guerrilla was a victim

of “persecution” based solely on the fact of an attack by one

against the other, then it would follow that the attacker had

participated in an act of “persecution” that would bar him from

relief under both sections 208 and 243(h). Such a broad

interpretation of the concept of persecution on account of the 5

reasons in the Act would have the actual effect of greatly

narrowing the group of persons eligible for asylum or withholding. 

Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). 

(3) Status as a former policeman is an immutable characteristic beyond

the capacity of the applicant to change and mistreatment occurring

because of such status could be found to be persecution on account

of political opinion or membership in a particular social group. 

However, although he does not bear the unreasonable burden of
page 165 of 365

establishing the exact motivation of the persecutor where different

reasons for actions are possible, he does have the burden of

establishing facts on which a reasonable person would fear that the

danger arises on account of his race, religion, nationality,

membership in a particular social group, or political opinion. 

Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988).

(4) An alien who served as a soldier in the Guatemalan Army has not

established a well-founded fear of persecution by the guerillas on

account of one of the five grounds enumerated in section

101(a)(42)(A) of the Act where he claims that his personal file

from the army fell into the hands of the guerillas who sought to

recruit him for his artillery expertise. Matter of C-A-L-, 21 I&N

Dec. 754 (BIA 1997).

(5) An alien has failed to establish that he has a well-founded fear of

country-wide persecution from the guerillas in Guatemala when he

was able to live for more than one year in different areas within the

country, including an area well known for its guerilla operations,

without experiencing any problems from the guerillas. Matter of

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

(6) An alien's status as a young male subject to recruitment efforts

from both sides in a civil war does not establish membership in a

persecuted social group. Matter of Sanchez and Escobar, 19 I&N

Dec. 276 (BIA 1985).

(7) It is not persecution for the government of a country to investigate

and detain individuals suspected of aiding or of being members of

a guerrilla organization. Matter of Maldonado-Cruz, 19 I&N Dec.

509 (BIA 1988), rev’d by Maldonado-Cruz v. INS, 883 F.2d 788

(9th Cir. 1989). A respondent has not established a well-founded

fear of persecution by the Government of a country on account of

political opinion due to his involvement with a guerrilla

organization, where the Government of that country has the

legitimate right to investigate the respondent regarding his

suspected activities on behalf of the guerrillas and to criminally

prosecute and punish him under its laws for any activities found to

be illegal, and there is no evidence that the respondent has received

any threats from the Government on the grounds of political

opinion, or otherwise. Matter of R-O-, 20 I&N Dec. 455 (BIA

1992).

(8) Forced recruitment or kidnapping of an individual by a guerrilla

force does not constitute persecution if the guerrillas seek to make

the person a member of their group rather than harm him because
page 166 of 365

he possesses a characteristic they find offensive and wish to

overcome. INS v. Elias-Zacarias, 502 U.S. 478 (1992).

(9) A guerrilla organization's attempt to coerce a person into joining

does not necessarily constitute “persecution on account of political

opinion.” INS v. Elias-Zacarias, 502 U.S. 478 (1992); Matter of RO-, 20 I&N Dec. 455 (BIA 1992). Even one who supports the

political aims of a guerrilla movement might resist joining to

perform military combat and thus become the object of such

coercion. INS v. Elias-Zacarias, 502 U.S. 478 (1992). A victim of

forced recruitment must show that he is being persecuted on

account of his political opinion, and that his persecution is not

solely the result of the guerrillas' aim in seeking to fill their ranks

in order to carry out their war with the Government and pursue

their political goal, their political motive being irrelevant. Matter

of R-O-, 20 I&N Dec. 455 (BIA 1992).

(10) In order to satisfy the definition of a “refugee” in section

101(a)(42) of the Act, the persecution must be on account of the

victim’s political opinion, not the persecutor’s. Therefore,

persecution on account of political opinion is not established by the

fact that the coercing guerrillas had political motives. Matter of RO-, 20 I&N Dec. 455 (BIA 1992).

(11) The threat of harm faced by a deserter from a guerrilla organization

is a result of a military policy of the guerrilla group, inherent in the

nature of the organization and a tool of discipline. Therefore, the

threat is neither an act of persecution nor evidence of persecution

by the guerrilla organization on account of political opinion, or any

other ground set forth in the Refugee Act of 1980. Matter of

Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988), rev’d by

Maldonado-Cruz v. INS, 883 F.2d 788 (9th Cir. 1989).

(12) It is a general rule that prosecution for an attempt to overthrow a

lawfully constituted government does not constitute persecution. 

However, this rule does not apply to countries where a coup is the

only means of effectuating political change. Matter of Izatula, 20

I&N Dec. 149 (BIA 1990).

(13) The Shining Path’s targeting of the alien to take revenge for the

Accomarca massacre amounted to targeting the alien on account of

his membership in the proposed social group, Peruvian military

officers whose names became associated with the Accomarca

massacre. Castañeda-Castillo v. Holder, 638 F.3d 354 (1st Cir.

2011) .

m. Imputed political opinion.
page 167 of 365

(1) Although an applicant for asylum must demonstrate that harm has

been or would be inflicted on account of one of the protected

grounds specified in the “refugee” definition, persecution for

“imputed” reasons can satisfy that definition. Matter of S-P-, 21

I&N Dec. 486 (BIA 1996).

(2) In Matter of N-M-, 25 I&N Dec. 526 (BIA 2011), the Board

addressed opposition to corruption as a political opinion or

imputed political opinion. The Board found that, “in some

circumstances, opposition to state corruption may provide evidence

of an alien’s political opinion or give a persecutor reason to impute

such beliefs to an alien.” Id. at 528. In determining the persecutor’s

motivation, the IJ should consider (1) “whether and to what extent

the alien engaged in activities that could be perceived as

expressions of anticorruption beliefs” (2) “any direct or

circumstantial evidence that the alleged persecutor was motivated

by the alien’s perceived or actual anticorruption beliefs” (3)

“evidence regarding the pervasiveness of government corruption,

as well as whether there are direct ties between the corrupt

elements and higher level officials.” Id. at 532-33.

(3) In mixed motive cases, an asylum applicant is not obligated to

show conclusively why persecution occurred or may occur;

however, in proving past persecution, the applicant must provide

evidence, either direct or circumstantial, from which it is

reasonable to believe that the harm was motivated in part by an

actual or imputed protected ground. Matter of S-P-, 21 I&N Dec.

486 (BIA 1996).

(4) In situations involving general civil unrest, the motive for harm

should be determined by considering the statements or actions of

the perpetrators; abuse or punishment out of proportion to

nonpolitical ends; treatment of others similarly situated;

conformity to procedures for criminal prosecution or military law;

the application of antiterrorism laws to suppress political opinion;

and the subjection of political opponents to arbitrary arrest,

detention, and abuse. Matter of S-P-, 21 I&N Dec. 486 (BIA

1996).

(5) Whistleblowing may be an expression of political opinion when it

involves exposure of corruption in a government operation. See

Antonyan v. Holder, 642 F.3d 1250 (9th Cir. 2011); Perez-Ramirez

v. Holder, 648 F.3d 953 (9th Cir. 2011). 

n. Clan membership/Family.
page 168 of 365

(1) Membership in a clan can constitute membership in a “particular

social group.” Matter of H-, 21 I&N Dec. 337 (BIA 1996). The

Marehan subclan of Somalia, the members of which share ties of

kinship and linguistic commonalities, is such a “particular social

group.” Id.

(2) While interclan violence may arise during the course of civil strife,

such circumstances do not preclude the possibility that harm

inflicted during the course of such strife may constitute

persecution. Matter of H-, 21 I&N Dec. 337 (BIA 1996).

(3) Family may constitute a particular social group. Gebremichael v.

INS, 10 F.3d 28 (1st Cir. 1993); Fatin v. INS, 12 F.3d 1233 (3d

Cir. 1993); Lopez-Soto v. Ashcroft, 383 F.3d 228, 235-36 (4th Cir.

2004), rehearing en banc granted (Jan 13, 2005),review withdrawn

pursuant to settlement (Jul 26, 2005); Iliev v. INS, 127 F.3d 638

(7th Cir. 1997); Hamzehi v. INS, 64 F.3d 1240 (8th Cir. 1995);

Thomas v. Gonzales, 409 F.3d 1177 (9th Cir. 2005), vacated on

other grounds, 126 S.Ct. 1613 (2006).

(4) To find persecution on account of family membership, the

evidence must indicate that the family member is targeted for her

membership in the family as such and not because harming that

family member will harm another family member. Demiraj v.

Holder, 631 F.3d 194 (5th Cir. 2011).

o. Participation in the Mariel Boatlift, in and of itself, does not provide a

basis for asylum or withholding of deportation. Matter of Barrera, 19

I&N Dec. 837 (BIA 1989).

p. Coercive family planning or population control.

(1) History lesson - In Matter of Chang, 20 I&N Dec. 38 (BIA 1989)

superseded by statute, Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub.L. No. 104-208, as recognized in

Li v. Ashcroft, 312 F.3d 1094 (9th Cir. 2002), the BIA held that the

“one couple, one child” policy of the Chinese government is not on

its face persecutive and cannot support a claim of persecution even

though it could result in involuntary sterilization because it is

uniformly applied to the population as a whole. In order to overrule

this decision, the Attorney General enacted regulations which

stated that aliens fleeing coercive family planning policies

involving forced abortion or sterilization have a well-founded fear

of persecution. The final asylum regulations which became

effective on October 1, 1990, inadvertently excluded this

provision. Therefore, Matter of Chang was temporarily restored.

On November 7, 1991, the INS General Counsel issued a
page 169 of 365

memorandum to his subordinates instructing them that valid

asylum requests based upon coercive family planning policies

should not be opposed by INS trial attorneys. The memorandum

was not binding on EOIR so INS trial attorneys were instructed to

move to terminate any such cases in which an IJ denied asylum and

invite the respondent to apply for asylum with INS. Then the Board

held that pending a decision by the Attorney General on asylum

and withholding claims premised on coercive family planning

policies, it will continue to follow Matter of Chang as precedent in

all proceedings involving the same issues. Matter of G-, 20 I&N

Dec. 764 (BIA 1993). Finally, section 601(a)(1) of the IIRIRA

amended the definition of “refugee” at section 101(a)(42) to bring

about the present law on this subject.

(2) PRESENT LAW - Section 101(a)(42), as amended by section

601(a) of IIRIRA, includes in the definition of “refugee” the

following: “For purposes of determinations under this Act, a

person who has been forced to abort a pregnancy or to undergo

involuntary sterilization, or who has been persecuted for failure or

refusal to undergo such a procedure or for other resistance to a

coercive population control program, shall be deemed to have been

persecuted on account of political opinion, and a person who has a

well founded fear that he or she will be forced to undergo such a

procedure or subject to persecution for such failure, refusal, or

resistance shall be deemed to have a well founded fear of

persecution on account of political opinion.”

(3) In Matter of X-P-T-, 21 I&N Dec. 634 (BIA 1996), the Board held

that since the amendment states that it applies not to asylum only,

but to all “determinations under this Act,” the amendment applies

to determinations of eligibility for withholding of deportation as

well as asylum. The Board acknowledged that Matter of Chang

had been superseded and held that an alien forced to undergo

involuntary sterilization or who was persecuted for resistence to a

CPC program had suffered past persecution and was entitled to a

presumption of a well-founded fear of future persecution.

(4) The Attorney General has ruled that the spouse of a person who

has been physically subjected to a forced abortion or sterilization

procedure is not per se entitled to refugee status. A person who has

not physically undergone a forced abortion or sterilization

procedure may still qualify as a refugee based on a well-founded

fear of persecution of being forced to undergo such a procedure, or

on account of persecution or a well-founded fear of persecution for

failure or refusal to undergo such a procedure or for other

resistance to a coercive population control program, or on other

grounds enumerated in the Immigration and Nationality Act. 
page 170 of 365

Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008). The Attorney

General’s ruling reversed previous Board precedent, which held

that an alien whose spouse was forced to undergo an abortion or

sterilization procedure can establish past persecution on account of

political opinion and qualifies as a refugee within the definition of

section 101(a)(42) of the Act. Matter of C-Y-Z-, 21 I&N Dec. 915

(BIA 1997), reversed on other grounds sub nom. Ke Zhen Zhao v.

U.S. Dep’t of Justice, 265 F.3d 83 (2d Cir. 2001). Such an alien

must have been, in fact, opposed to the spouse’s abortion or

sterilization and legally married to the spouse at the time of

sterilization. Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006),

overruled on other grounds by Lin v. U.S. Dep’t of Justice, 494

F.3d 296 (2d Cir. 2007). The regulatory presumption of a wellfounded fear of future persecution may not be rebutted in the

absence of changed country conditions, regardless of the fact that

the sterilization of the alien’s spouse negates the likelihood of

sterilization to the alien. Matter of C-Y-Z, 21 I&N Dec. 915 (BIA

1997). 

(a) Prior to the Attorney General’s decision, the Second Circuit,

in Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007),

declined to follow Matter of C-Y-Z-. Rather, the court ruled

that, when a woman undergoes a forced abortion or

sterilization, her spouse (or other male partner) does not

become a per se refugee on these grounds. Under Lin, for a

spouse or other male partner of such an individual to be

deemed a refugee on these grounds, he must demonstrate

“other resistance” to the coercive population control program.

(b) Following Matter of J-S-, at least four Circuit Courts have

applied the Attorney General’s decision in published

opinions; no circuit appears to have rejected it. See Yu v.

Att’y Gen., 568 F.3d 1328, 1332-33 (11th Cir. 2009); Jin v.

Holder, 572 F.3d 392, 397 (7th Cir. 2009); Lin-Zheng v.

Att’y Gen., 557 F.3d 147, 157 (3d Cir.2009) (en banc); Yi Ni

v. Holder, 613 F.3d 415, 425 (4th Cir. 2010). 

(5) Where an alien has established past persecution based on the

forced sterilization of his spouse pursuant to a policy of coercive

family planning, the fact that, owing to such sterilization, the alien

and his spouse face no further threat of forced sterilization or

abortion does not constitute a “fundamental change” in

circumstances sufficient to meet the standards for a discretionary

denial under 8 C.F.R. § 1208.13(b)(1)(i)(A), Matter of Y-T-L-, 23

I&N Dec. 601 (BIA 2003). Note, however, that, under the

Attorney General’s decision in Matter of J-S- an alien is no longer
page 171 of 365

deemed to be a per se refugee based on his spouse’s forced

abortion or sterilization.

(6) Unmarried applicants claiming persecution related to a partner’s

coerced abortion or sterilization may qualify for asylum if they

demonstrate that they have been persecuted for “other resistance to

a coercive population control program” within the meaning of

section 101(a)(42). Matter of S-L-L-, 24 I&N Dec. 1 (BIA 2006).

(7) An alien seeking to reopen removal proceedings based on a claim

that the birth of a second child in the United States will result in

the alien’s forced sterilization in China cannot establish prima facie

eligibility for relief where the evidence submitted with the motion

and the relevant country conditions reports do not indicate that

Chinese nationals returning to that country with foreign-born

children have been subjected to forced sterilization in the alien’s

home province. Matter of C-C-, 23 I&N Dec. 899 (BIA 2006)

(distinguishing Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004)). See

Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010).

(8) An alien who has not previously been persecuted, but who has

fathered or given birth to two or more children in China, qualifies

as a refugee on this basis alone if he or she establishes that (1) the

births violated family planning policies in the alien's locality, and

(2) the current local family planning enforcement efforts would

give rise to a well-founded fear of persecution because of the

violation. Matter of J-H-S-, 24 I&N Dec. 196 (BIA 2007).

(9) In two cases involving Chinese citizens from Changle City, Fujian

Province, both of whom had one child born in China and a second

born in the U.S., the Board rejected arguments that the respondents

would be persecuted on account of their children born outside

China. See Matter of J-W-S-, 24 I&N Dec. 185 (BIA 2007);

Matter of S-Y-G-, 24 I&N Dec. 247 (BIA 2007). 

(10) In a case involving an asylum application based on allegedly

coercive abortions, the Board held that: (1) an abortion is forced by

threats of harm when a reasonable person would objectively view

the threats for refusing the abortion to be genuine, and the

threatened harm, if carried out, would rise to the level of

persecution; and (2) nonphysical forms of harm, such as the

deliberate imposition of severe economic disadvantage or the

deprivation of liberty, food, housing, employment, or other

essentials of life, may amount to persecution. Matter of T-Z-, 24

I&N Dec. 163 (BIA 2007).
page 172 of 365

(11) In Matter of M-F-W- & L-G-, 24 I&N Dec. 633 (BIA 2008), the

Board ruled as follows in a case where an IUD was forcibly

inserted into the Chinese respondent and later removed, and a

second IUD was subsequently inserted. First, the Board ruled that

having an IUD inserted against one’s will does not constitute being

“forced to abort a pregnancy or to undergo involuntary

sterilization” under section 101(a)(42). Second, with regard to

refugee status under section 101(a)(42) for having “been

persecuted . . . for other resistance to a coercive population control

program,” the Board interpreted “other resistance” as including

“both failures and refusals to comply with China’s coercive

population control practices, but not simple grudging compliance.”

The Board specified that qualifying resistance “would include

resistance such as removing an IUD or failing to attend a

mandatory gynecological appointment.” Third, the Board held that

“simply requiring a woman to use an IUD, and other more routine

methods of China’s implementation of its family planning policy,

do not generally rise to the level of harm required to establish

persecution.” Rather, for the insertion of an IUD to constitute

persecution, “the insertion . . . must involve aggravating

circumstances.” Fourth, the Board emphasized that, to qualify as a

refugee under section 101(a)(42) due to the insertion of an IUD as

persecution for “other resistance to a [CPC] program,” the alien

must show that the IUD was “inserted or reinserted for some

resistance that the alien manifested.” (Emphasis in original.) By

contrast, if the IUD was reinserted “merely because reinsertion is a

standard procedure in China,” the “alien may be unable to meet her

burden of establishing” refugee status. See Huang v. Holder, 591

F.3d 124 (2d Cir. 2010)(agreeing with the Board that forced

insertion of an IUD does not constitute persecution, barring other

factors such as punishment for removal of an IUD).

(12) In Mei Fun Wong v. Holder, 633 F.3d 64 (2d Cir. 2011), the

Second Circuit held that the Board’s decision in Matter of M-F-W-

& L-G- construing the INA to require that involuntary IUD

insertion be accompanied by aggravating circumstances to

constitute persecution warranted Chevron deference. However, the

Court also found that the Board failed to adequately explain its

application of the “aggravated circumstances” test. Id. at 75-76. 

The Court remanded the case to allow the Board to articulate the

aggravating circumstances and nexus standards. See id. at 78-80.

(13) The Seventh Circuit has implied that a member of the hei haizi, a

child ineligible for registration on the hukou because he or she was

born in violation of China's population control program, may be

member of a particular social group for purposes of asylum. Chen

v. Holder, 604 F.3d 324 (7th Cir. 2010). 
page 173 of 365

q. Persecution on account of gender

(1) Female Genital Mutilation (FGM)

(a) The practice of FGM, which results in permanent

disfiguration and poses a risk of serious and potentially lifethreatening complications, can be a basis for a claim of

persecution. Matter of Kasinga, 21 I&N Dec. 357 (BIA

1996). Young women who are members of the TchambaKunsuntu Tribe of northern Togo who have not been

subjected to FGM and who oppose the practice, are

recognized as members of a “particular social group.” Id.

(b) The Ninth Circuit held that the infliction of FGM gives rise

to an unrebuttable well-founded fear of future persecution. 

The court reasoned that (1) forced sterilization gives rise to a

well-founded fear of persecution; and (2) like forced

sterilization, FGM is a “permanent and continuing” act. 

Mohammed v. Gonzales, 400 F.3d 785 (9th Cir. 2005). 

(c) The Board held that an alien may not establish eligibility for

asylum or withholding of removal based solely on fear that

his or her daughter will be forced to undergo female genital

mutilation upon returning to the alien’s home country. 

Matter of A-K-, 24 I&N Dec. 275 (BIA 2007).

i) In Kone v. Holder, 620 F.3d 760, 765 (7th Cir. 2010),

the Seventh Circuit held that FGM of an alien asylum

applicant’s family member can constitute direct, as

opposed to derivative, persecution of the alien. The

court did not address the Board’s decision in Matter of

A-K-, 24 I&N Dec. 275 (BIA 2007), but did cite to a

prior decision, Gatimi v. Holder, 606 F.3d 344, 349 (7th

Cir. 2010), in which it distinguished from Matter of AK- based on the fact that both parents were subject to

removal, whereas in Matter of A-K- the child had one

parent with legal status. The Seventh Circuit cited to a

Second Circuit opinion, Kone v. Holder, 596 F.3d 141,

143 (2d Cir. 2010), in which the Second Circuit

remanded to the Board for consideration of “whether

the mental anguish of a mother who was herself a

victim of genital mutilation who faces the choice of

seeing her daughter suffer the same fate, or avoiding

that outcome by separation from her child” would

qualify as sufficient persecution of an applicant so as to

warrant a grant of asylum. 596 F.3d at 153. The
page 174 of 365

Seventh Circuit also cited to a Sixth Circuit opinion,

Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004), in

which the Sixth Circuit found that the applicant could

demonstrate persecution based on the harm she would

suffer by “being forced to witness the pain and suffering

of her daughter” if she were subjected to FGM.

 

(d) In Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008), the

Attorney General vacated the Board’s decision in Matter of

A-T-, 24 I&N Dec. 296 (BIA 2007). There, the Board denied

the respondent’s application for withholding of removal, in

which she alleged that she had been subjected to female

genital mutilation. In his decision, the Attorney General first

stated that, because FGM is sometimes inflicted more than

once on the same person, “there was no basis for the Board’s

legal conclusion that the past infliction of female genital

mutilation by itself rebuts ‘[a]ny presumption of future

[FGM] persecution.’” The Attorney General also stated that

“the Board was wrong to focus on whether the future harm to

life or freedom that [the] respondent feared would take the

‘identical’ form–namely, female genital mutilation–as the

harm she had suffered in the past. . . . Here, the ‘original

claim’ was not ‘[FGM] persecution,’ as the Board put it . . .

but rather persecution on account of membership in a

particular (albeit not clearly defined) social group.” This

accords with the Second Circuit’s decision in Bah v.

Mukasey, 529 F.3d 99 (2d Cir. 2008), where the court stated

that “the fact that an applicant has undergone female genital

mutilation in the past cannot, in and of itself, be used to rebut

the presumption that her life or freedom will be threatened in

the future.” In Matter of A-T-, 25 I&N Dec. 4 (BIA 2009),

the Board stated that requests for asylum or withholding of

removal based on past persecution related to FGM must be

adjudicated within the framework established by Matter of AT-, 24 I&N Dec. 617 (A.G. 2008).

(e) In a case involving a mother and daughter from Somalia who

were subjected to FGM, the Board found that both

respondents suffered past persecution on account of

membership in a particular social group. Further, asylum on

humanitarian grounds was merited, regardless of whether the

respondents established well-founded fears of future

persecution, because the respondents “suffered an atrocious

form of persecution that results in continuing physical pain

and discomfort.” Matter of S-A-K- & H-A-H-, 24 I&N Dec.

464 (BIA 2008).
page 175 of 365

(2) The Eighth Circuit found that Iranian women do not qualify as a

“particular social group” within the meaning of the Act merely by

virtue of their gender and the harsh restrictions placed upon them

in Iran. The Court deemed the classification as overbroad in that

no fact finder could reasonably conclude that all Iranian women

have a well-founded fear of persecution based solely on their

gender. The Court noted that a group of women who refuse to

conform to customs and whose opposition is so profound that they

would choose to suffer the severe consequences of noncompliance

may satisfy the definition. However, the Court found that the

respondent failed to demonstrate that she was a member of such a

group for although she had taken some affirmative steps to

articulate her opposition to Iranian customs relating to women's

rights, it could not conclude that for her, compliance with the

gender-specific laws would be “so profoundly abhorrent that it

could aptly be called persecution.” Safaie v. INS, 25 F.3d 636 (8th

Cir. 1994), superceded by statute on other grounds recognized by

Rife v. Ashcroft, 374 F.3d 606, 614 (8th Cir. 2004). 

(3) The Ninth Circuit held that Board erred in dismissing alien's appeal

solely on the ground that “all women in Guatemala” could not

constitute a cognizable social group. Perdomo v. Holder, 611 F.3d

662 (9th Cir. 2010). The Board had affirmed the IJ’s denial of

asylum, finding that a social group consisting of “all women in

Guatemala” is over-broad and “a mere demographic division of the

population rather than a particular social group.” The court noted

that it had found other broad and internally diverse social groups

that shared innate characteristics, such as homosexuals and

Gypsies, to be particular social groups for purposes of asylum. Id. 

(citing Karouni v. Gonzales, 399 F.3d 1163 (9th Cir. 2005)

(holding that all alien homosexuals are members of a particular

social group) and Mihalev v. Ashcroft, 388 F.3d 722 (9th Cir.

2004) (holding that Gypsies are a particular social group)). The

court remanded for the Board to determine in the first instance

whether women in Guatemala constitute a particular social group,

and, if so, whether the alien demonstrated a fear of persecution “on

account of” her membership in such a group. 

(4) A woman with liberal Muslim beliefs who wore short skirts and

makeup and refused to wear a veil, has suffered past persecution

and has a well-founded fear of future persecution at the hands of

her father who beat and physically punished her on account of her

religious beliefs, which differ from her father’s orthodox Muslim

views concerning the proper role of women in Moroccan society;

Matter of S-A-, 22 I&N Dec. 1328 (BIA 2000). The Board held

that the persecution was actually on account of the respondent’s

religion, not her gender.
page 176 of 365

(5) The First Circuit upheld the Board’s determination that the

proposed social group of “women who had a child out of

wedlock/are considered adulterers because they gave birth to a

child allegedly not their husband’s/have been abused by their

husbands” lacked social visibility and sufficient particularity to

constitute a particular social group. See Faye v. Holder, 580 F.3d

37 (1st Cir. 2009).

(6) The Seventh Circuit held that the group of “women in Jordan who

had allegedly flouted repressive moral norms, and thus faced a high

risk of honor killing” qualified as a particular social group. Sarhan

v. Holder, --- F.3d ----, No. 10-2899, 2011 WL 3966151 (7th Cir.

Sept. 2, 2011).

r. Sexual preference

(1) The Board held that an applicant for admission who testified that

he was registered as a homosexual with a government office in

Cuba, that he was called in for examination by that office every 2

or 3 months for 13 years, and that he was required to leave Cuba in

the Mariel Boatlift or face four years in prison, has established his

membership in a particular social group in Cuba, has demonstrated

that his freedom was threatened on account of his membership in

that group, and is eligible for withholding of deportation. Matter

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

(2) The Ninth Circuit has held that “all alien homosexuals are

members of a ‘particular social group.’” Karouni v. Gonzales, 399

F.3d 1163, 1172 (9th Cir. 2005). The Third Circuit has impliedly

recognized that homosexuals constitute a “particular social group.” 

See Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003). The Eighth

Circuit has assumed for purposes of an appeal, that “homosexuals

are a particular social group.” Molathwa v. Ashcroft, 390 F.3d 551,

554 (8th Cir. 2004) (citing Hernandez-Montiel, 225 F.3d 1084 (9th

Cir. 2000). The Eleventh Circuit has impliedly recognized that

sexual orientation constitutes a “particular social group.” Ayala v.

Att’y Gen., 605 F.3d 941 (11th Cir. 2010). 

(3) In Castro-Martinez v. Holder, 641 F.3d 1103 (9th Cir. 2011), the

Ninth Circuit held that substantial evidence supported the IJ and

Board’s decision denying asylum to an alien who claimed that he

had experienced past persecution in Mexico as a homosexual male

and that if removed to Mexico he would face persecution and

torture on account of his homosexuality and his HIV-positive

status. The alien testified that he was raped brutally and repeatedly

by two male teenagers when he was between six and ten years old,

and he never told his parents or the police. The court determined
page 177 of 365

that substantial evidence supported the Board's conclusion that the

alien failed to demonstrate past persecution because the sexual

abuse he experienced was not inflicted by government actors, he

failed to demonstrate that the government was unable or unwilling

to control his attackers, and he failed to sufficiently explain why

reporting the sexual abuse to the authorities would have been futile

or would have put him at risk of harm. Substantial evidence

supported the conclusion that the alien failed to demonstrate a

well-founded fear of future persecution because the record did not

compel the conclusion that the Mexican government systematically

harmed gay men and failed to protect them from violence. 

s. Health Conditions

(1) HIV/AIDS. The INS recognized that “in certain circumstances . . .

persons with HIV or AIDS may constitute a particular social group

under refugee law.” Memorandum from David A. Martin, INS

Office of General Counsel (Feb. 16, 1996), reported in 73

Interpreter Releases 909, 909 (July 8, 1996). Shortly thereafter, the

INS formally adopted the “position . . . that homosexuals do

constitute a particular social group.” Memorandum from David A.

Martin, INS General Counsel, to All Regional and District Counsel

(Apr. 4, 1996).

(2) Parents of a disabled child. The Ninth Circuit has held that

disabled children and their parents constituted a statutorily

protected group, and a parent who provided care for a disabled

child could seek asylum and withholding of removal on the basis

of persecution the child had suffered on account of his disability.

Tchoukhrova v. Gonzales, 404 F.3d 1181 (9th Cir. 2005). 

However, the Supreme Court vacated and remanded this decision

in light of its decision in Gonzales v. Thomas, 547 U.S. 183

(2006).

t. Domestic Violence

(1) In Matter of R-A-, the Board held that an asylum applicant who

claims persecution on the basis of a group defined as “Guatemalan

women who have been involved intimately with Guatemalan male

companions, who believe that women are to live under male

domination” must demonstrate, inter alia, that her persecutor

husband targeted and harmed her because he perceived her to be a

member of this particular social group. 22 I&N Dec. 906 (BIA

1999). The Attorney General subsequently vacated the Board’s

decision and remanded the case for reconsideration following final

publication of the proposed rule published at 65 Fed. Reg. 76588

(proposed Dec. 7, 2000). Matter of R-A-, 22 I&N Dec. 906 (BIA
page 178 of 365

1999; A.G. 2001). The proposed rule provides guidance in the

assessment of claims made by applicants who have suffered or fear

domestic violence. 65 Fed. Reg. 76588. The final rule has yet to

be published and in January 2005, Attorney General Ashcroft again

remanded the case to the Board for reconsideration following

publication of the final rule. Matter of R-A-, 23 I&N Dec. 694

(A.G. 2005).

(2) In Matter of R-A-, 24 I&N Dec. 629 (A.G. 2008), the Attorney

General instructed the Board to “revisit the issues in Matter of RA- and related cases and issue new decisions,” despite the fact that

the rule referenced above had yet to be published. In the 2008

decision, the Attorney General noted that the proposed rule (which

“would have amended the asylum regulations relating to the

meaning of the terms ‘persecution,’ ‘on account of,’ and ‘particular

social group) has not been finalized, but that “both the Board and

courts of appeals have issued numerous decisions relating to

various aspects of asylum law under existing statutory and

regulatory provisions.” Further, some of these decisions “have

addressed, for example, the terms ‘persecution,’ ‘on account of,’

and ‘particular social group,’ and thus may have relevance to the

issues presented with respect to asylum claims based on domestic

violence.” The Attorney General also stated that, to the extent the

Board will be addressing questions involving the “interpretation of

ambiguous statutory language, the Board is free to exercise its own

discretion and issue a precedent decision nationwide.” For this, the

Attorney General cited, in part, to National Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), with the

Attorney General stating that “the Supreme Court has made clear

that administrative agencies are not bound by prior judicial

interpretations of ambiguous statutory provisions.”

u. Former noncriminal drug informants. The group “former noncriminal

drug informants working against the Cali drug cartel” does not have the

requisite social visibility to constitute a “particular social group.” Matter

of C-A-, 23 I&N Dec. 951 (BIA 2006).

v. Affluent Guatemalans. In Matter of A-M-E- & J-G-U-, the Board held

that the respondents failed to establish that their status as affluent

Guatemalans gave them sufficient social visibility to be perceived as a

group by society or that the group was defined with adequate

particularity to constitute a particular social group. 24 I&N Dec. 69

(BIA 2007).

(1) Matter of A-M-E- & J-G-U- was followed by the Second Circuit in

Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007). In UceloGomez, the Second Circuit ruled that “affluent Guatemalans who
page 179 of 365

suffer persecution fueled by class rivalry in an impoverished

society” do not belong to a particular social group.

w. Gang recruitment, threats by gangs, and former gang members

(1) In the first precedent Board or circuit court decision directly

addressing former gang membership as grounds for asylum, the

Ninth Circuit ruled that tattooed former gang members do not

belong to a particular social group. Arteaga v. Mukasey, 511 F.3d

940 (9th Cir. 2007).

(2) The Seventh Circuit, however, held that former gang members may

be members of a particular social group. Ramos v. Holder, 589

F.3d 426 (7th Cir. 2009) (distinguishing Arteaga by reasoning that

Arteaga dealt with current gang members, not former members like

Ramos and criticizing the Board’s “social visibility” theory). See

Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) (finding

same).

(3) In Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008), the Board

ruled that “persons resistant to gang membership” in Honduras are

not members of a particular social group as this group “lacks the

social visibility that would allow others to identify its members.” 

The Board further ruled that “young persons [in Honduras] who are

perceived to be affiliated with gangs” are not members of a

particular social group. In this regard, the Board stated that

“because we agree [with the Ninth Circuit’s decision in Arteaga v.

Mukasey, 511 F.3d 940 (9th Cir. 2007)] that membership in a

criminal gang cannot constitute a particular social group, the

respondent cannot establish particular social group status based on

the incorrect perception by others that he is such a gang member.”

In addition, the Board ruled that “the respondent’s refusal to join [a

gang in Honduras], without more, does not constitute a ‘political

opinion,’” and that “no evidence, either direct or circumstantial,

has been produced to show that gangs in Honduras would

persecute the respondent because of any political opinion, real or

imputed, that he holds.” Id.; see also Marroquin-Ochoma v.

Holder, 574 F.3d 574 (8th Cir. 2009). 

(4) In Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), the Board ruled

that “Salvadoran youth who have been subjected to recruitment

efforts by MS-13 and who have rejected or resisted membership in

the gang based on their own personal, moral, and religious

opposition to the gang’s values and activities, ” are not members of

a particular social group. In addition, the Board ruled that family

members of such individuals are not members of a particular social

group. The Board reasoned that these groups fail to satisfy the
page 180 of 365

Board’s standards for “particularity” and “social visibility.” The

Board further found “that the respondents failed to demonstrate

that they were persecuted or have a well-founded fear of

persecution based on actual or imputed political opinion.” In this

regard, the Board stated that “[t]he respondents did not establish

what political opinion, if any, they held, and they have provided no

evidence, direct or circumstantial, that the MS-13 gang in El

Salvador imputed, or would impute to them, an anti-gang political

opinion. Nor have they established that the gang persecuted or

would persecute them on the basis of such opinion. There is no

indication that the MS-13 gang members who pursued the

respondents had any motives other than increasing the size and

influence of their gang.”

(5) Citing to Matter of S-E-G-, the Ninth Circuit ruled that “young

men in El Salvador resisting gang violence” are not members of a

particular social group. Santos-Lemus v. Mukasey, 542 F.3d 738

(9th Cir. 2008). See also Ramos Barrios v. Holder, 581 F.3d 849

(9th Cir. 2009). Similarly, in Lizama v. Holder, 629 F.3d 440 (4th

Cir. 2011), the Fourth Circuit affirmed the IJ and Board’s

determination that a social group of young, Americanized, well-off

Salvadoran male deportees with criminal histories who opposed

gangs was not narrow or enduring enough to clearly delineate its

membership or readily identify its members, and, thus, an alien

who claimed membership in that group failed to show probability

of persecution if he were removed to El Salvador.

(6) In Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011), the

Fourth Circuit held that the aliens’ proposed social group of

“family members of those who actively oppose gangs in El

Salvador by agreeing to be prosecutorial witnesses” qualified as a

“particular social group” for purposes of asylum. Id. (finding that

the Board misstated the alien’s claimed social group when it

concluded that “those who actively oppose gangs in El Salvador by

agreeing to be prosecutorial witnesses” does not constitute a

cognizable social group but failed to consider that family members

of those witnesses constitute a social group). The Fourth Circuit

specifically found that the aliens’ proposed social group met both

the social visibility and particularity requirements. Id. The court

further held that the alien had established an objectively reasonable

fear of future persecution. Id. (“The Board thus erred in rejecting

the IJ’s conclusion that the unrebutted evidence of death threats

against Crespin and his family members, combined with MS-13's

penchant for extracting vengeance against cooperating witnesses,

gave rise to a reasonable fear of future persecution.”)
page 181 of 365

(7) Citing to Matter of S-E-G- and Matter of E-A-G-, the First Circuit

affirmed the denial of asylum, withholding of removal, and CAT

relief, finding that the particular social group, “young women

recruited by gang members who resist such recruitment” is neither

sufficiently particular nor socially visible to constitute a particular

social group. See Mendez-Barrera v. Holder, 602 F.3d 21 (1st Cir.

2010). See also Larios v. Holder, 608 F.3d 105 (1st Cir. 2010).

(8) In Rivera-Barrientos v. Holder, --- F.3d ----, No.10-9527, 2011 WL

3907119 (10th Cir. Sept. 7, 2011), the Tenth Circuit found Matter

of S-E-G- controlling and affirmed the IJ’s decision holding that

while the group of “young Salvadoran women between the ages of

12 and 25 who resisted gang recruitment” is sufficiently particular,

it did not meet the social visibility requirement.

x. Former Colombian truckers who resisted FARC. In Escobar v. Holder, 

--- F.3d ----, No. 10-3751, 2011 WL 4349403 (7th Cir. Sept. 7, 2011),

the Seventh Circuit held that the alien’s articulated social group of

“former truckers who resisted the Revolutionary Armed Forces of

Colombia (“FARC”) and collaborated with authorities” could be

considered a particular social group, since FARC was persecuting the

alien because he and those like him shared several characteristics, such

as skills as a trucker, support of the government, and opposition to

FARC, and the alien could not shed his status as a former trucker by no

longer engaging in trucking.

5. Evidence.

a. 8 C.F.R. § 208.13(b)(2) states that an alien shall be found to have a wellfounded fear of persecution if he establishes the following:

(1) He has a fear of persecution in his country of nationality or last

habitual residence on account of one of the 5 reasons enumerated

in the Act;

(2) There is a reasonable possibility of actually suffering such

persecution if he were to return to that country;

(3) That he is unable or unwilling to return to or avail himself of the

protection of that country because of such fear.

(4) The alien need not establish to the Asylum Officer or IJ that he

would be singled out for persecution if:

(a) He establishes that there is a pattern or practice in his country

of nationality or last habitual residence of groups of persons
page 182 of 365

similarly situated to the applicant on account of one of the 5

reasons;

(b) The alien establishes his own inclusion in and identification

with such group of persons such that his fear of persecution

upon return is reasonable.

(5) The Asylum Officer or IJ shall give due consideration to evidence

that the government of the country in which persecution is feared

persecutes its nationals or residents if:

(a) They leave the country without authorization, or

(b) seek asylum in another country.

(6) Regarding withholding of deportation, 8 C.F.R. § 1208.16(b)

provides the same as 8 C.F.R. § 1208.13(b)(2) does for asylum

except that “the applicant's life or freedom” shall be found to be

threatened if it is more likely than not that he would be persecuted

on account of race, religion, nationality, membership in a particular

social group, or political opinion.

b. Background evidence (in the form of newspaper of magazine articles or

reports prepared by government agencies) relating to general or specific

conditions in the country of feared persecution is admissible in a hearing

if it is relevant, material, and noncumulative, and an IJ’s rejection of all

background evidence, even on general conditions in the country,

deprives the alien of a full and fair hearing and necessitates a remand by

the Board. Matter of Exame, 18 I&N Dec. 303 (BIA 1982). 

c. Corroborating evidence is not required in all cases. An alien's own

testimony, without corroborative evidence, may be sufficient proof if

that testimony is believable, consistent, and sufficiently detailed to

provide a plausible and coherent account of the basis for his fear of

persecution. 8 C.F.R. § 1208.13(a); Matter of Mogharrabi, 19 I&N Dec.

439 (BIA 1987). For applications affected by the REAL ID Act of 2005,

where the trier of fact determines that the applicant should provide

evidence that corroborates otherwise credible testimony, such evidence

must be provided unless the applicant does not have the evidence and

cannot reasonably obtain the evidence. INA § 208(b)(1)(B)(ii).

d. When the basis of a persecution claim becomes less focused on specific

events involving the alien personally and instead is more directed to

broad allegations regarding general conditions in the country of feared

persecution, it may well be essential for the alien to present

corroborative background evidence that establishes a plausible context

for the persecution claim. Matter of Dass, 20 I&N Dec. 120 (BIA 1989).
page 183 of 365

(1) In such cases, background evidence should be presented if it is

available or an acceptable explanation should be given for its

absence. Id. 

(2) Since the alien bears the evidentiary burden of proof and

persuasion, applications will be denied for failure of proof where

there are significant, meaningful evidentiary gaps. Id.

e. An alien must demonstrate that the threat of persecution exists

throughout the country in which he alleges persecution, not merely in a

particular area within the country. Matter of Acosta, 19 I&N Dec. 211

(BIA 1985) overruled in part by Matter of Mogharrabi 19 I&N Dec. 439

(BIA 1987).

f. Even if an asylum claim is otherwise demonstrated, eligibility for asylum

based on nongovernmental action may not be adequately established

where the evidence of danger is directed to a very local area in the

country of feared persecution. Matter of Fuentes, 19 I&N Dec. 658 (BIA

1988).

g. If an alien claims that he received persecutive punishment at the hands of

local officials, he must normally show that redress from higher officials

was unavailable or that he had a well-founded fear that it would be

unavailable. Matter of Chang, 20 I&N Dec. 38 (BIA 1989) superseded

by statute, Illegal Immigration Reform and Immigrant Responsibility Act

of 1996, Pub.L. No. 104-208, as recognized in Li v. Ashcroft, 312 F.3d

1094 (9th Cir. 2002).

h. The reasonableness of an alien's fear of persecution is reduced when his

family remains in his native country unharmed for a long period of time

after his departure. Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998).

i. Where evidence from the U.S. Dept. of State indicates that country

conditions have changed after an alien's departure from his native

country and that the Peruvian government has reduced the Shining Path's

ability to carry out persecutory acts and the alien fails to rebut such

evidence, the alien failed to establish a well-founded fear of persecution. 

Matter of A-E-M-, 21 I&N Dec. 1157 (BIA 1998).

j. Country profiles submitted by the Department of State’s Bureau of

Democracy, Human Rights and Labor are entitled to considerable

deference. Matter of T-M-B-, 21 I&N Dec. 775 (BIA 1997). Matter of

H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 213 (BIA 2010).

k. Credibility.
page 184 of 365

(1) For applications made on or after May 11, 2005, the REAL ID Act

of 2005 provides that considering the totality of the circumstances,

and all relevant factors, a trier of fact may base a credibility

determination on the demeanor, candor or responsiveness of the

applicant or witness, the inherent plausibility of the applicant’s or

witness’ account, the consistency between the applicant’s or

witness’ written and oral statements (whenever made and whether

or not under oath, and considering the circumstances under which

the statements were made), the internal consistency of each such

statement, the consistency of such statements with other evidence

of record (including the reports of the Department of State on

country conditions), and any inaccuracies or falsehoods in such

statements, without regard to whether an inconsistency, inaccuracy

or falsehood goes to the heart of the applicant’s claim or any other

relevant factor. There is no presumption of credibility, however, if

no adverse credibility determination is explicitly made, the

applicant or witness shall have a rebuttable presumption of

credibility on appeal. INA § 208(b)(1)(B)(iii).

(a) The Board held that, for asylum cases governed by the REAL

ID Act, a trier of fact may, after considering the totality of the

circumstances, base a credibility finding on an asylum

applicant’s demeanor, the plausibility of his or her account,

and inconsistencies in statements, without regard to whether

they go to the heart of the asylum claim. In this case, the

Board held that the IJ properly considered the totality of the

circumstances in finding that the respondent lacked

credibility based on his demeanor, his implausible testimony,

the lack of corroborating evidence, and his inconsistent

statements, some of which did not relate to the heart of the

claim. Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007).

Under the REAL ID Act, inconsistencies will support an

adverse credibility finding, regardless of whether they relate

to the heart of the claim. See El-Moussa v. Holder, 569 F.3d

250 (6th Cir. 2009); Wang v. Holder, 569 F.3d 531 (5th Cir.

2009); Krishnapillai v. Holder, 563 F.3d 606, 616-17 (7th

Cir. 2009); Qun Lin v. Mukasey, 521 F.3d 22, 26-27 (1st Cir.

2008); Lin v. Mukasey, 534 F.3d 162, 165-68 (2d Cir. 2008);

Chen v. Att’y Gen., 463 F.3d 1228, 1231-33 (11th Cir. 2006).

(b) Circuit courts have split as to whether the REAL ID Act

revived the doctrine of falsus in uno, falsus in omnibus (false

in one thing, false in all things) with respect to the applicant’s

credibility. This doctrine permits a trier of fact to cite a

witness’s false statement relating to one subject to conclude

that the witness testified falsely relating to another subject. 

In a footnote to a pre-REAL ID Act case, the First Circuit
page 185 of 365

stated that the Act revived this doctrine. Castaneda-Castillo

v. Gonzales, 488 F.3d 17 (1st Cir. 2007). However, in Kadia

v. Gonzales, 501 F.3d 817 (7th Cir. 2007), the Seventh

Circuit stated that it was “dubious” that the REAL ID Act

did, in fact, revive the doctrine of falsus in uno, falsus in

omnibus. 

(c) The Seventh Circuit held that the IJ’s adverse credibility

finding was supported by substantial evidence; namely, new

assertions not previously stated in the respondent’s asylum

application and the respondent’s failure to provide a

satisfactory explanation as to why he omitted certain events.

Hassan v. Holder, 571 F.3d 631 (7th Cir. 2009). The court

found that although the events the IJ relied on to discredit the

respondent’s claim did not directly contradict his written

application and are arguably not central to his asylum claim,

the omitted events are not trivial, and under the REAL ID

Act, considering all the relevant factors in this case, the IJ

could rely on these material omissions to conclude the

respondent’s omissions were an attempt to embellish his

asylum claim. Id.

(d) The Eighth Circuit upheld an adverse credibility

determination, finding that even if the petitioner’s

explanations could plausibly account for the significant

inconsistencies in her asylum applications, the IJ did not err

by rejecting them. Fesehaye v. Holder, 607 F.3d 523 (8th

Cir. 2010).

(e) Where an alien did not offer a reasonable and plausible

explanation for the discrepancies, which went to the heart of

his claim, either individually or in the aggregate, even though

he had ample opportunity to do so, the IJ’s adverse credibility

finding is supported and it is not necessary to make an

“express, point-by-point rejection of [the alien’s]

explanations.” Rizk v. Holder, 629 F.3d 1083 (9th Cir. 2011).

(f) The Ninth Circuit held that an IJ’s perception of the alien's

ignorance of religious doctrine was not a proper basis for an

adverse credibility finding. Lei Li v. Holder, 629 F.3d 1154

(9th Cir. 2011) (where the IJ had found a Chinese asylum

applicant incredible largely because the applicant thought that

Thanksgiving was a Christian holiday and knew little about

the differences between the Old and New Testaments). 

(g) The Eleventh Circuit held that the IJ and Board’s adverse

credibility finding was not supported by any of the three
page 186 of 365

“perceived inconsistencies” between the alien’s written

statement and his testimony, and the record compelled

reversal. Kueviakoe v. Att’y Gen., 567 F.3d 1301, 1306

(11th Cir. 2009). The court explained how each of the three

perceived inconsistencies were actually not inconsistencies

when viewed a different way. 

(h) Where the trier of fact determines that the applicant should

provide evidence that corroborates otherwise credible

testimony, such evidence must be provided unless the

applicant does not have the evidence and cannot reasonably

obtain the evidence. INA § 208(b)(1)(B)(ii).

(2) Presentation by an asylum applicant of an identification document

that is found to be counterfeit by forensic experts not only

discredits the applicant's claim as to the critical elements of identity

and nationality, but, in the absence of an explanation or rebuttal,

also indicates an overall lack of credibility regarding the entire

claim. Matter of O-D-, 21 I&N Dec. 1079 (BIA 1998), overruled

in part as stated in Hanaj v. Gonzales, 446 F.3d 694 (7th Cir.

2006).

(3) Although the Board has de novo review authority, the Board

accords deference to an IJ’s findings regarding credibility and

credibility-related issues. The Board defers to an adverse

credibility finding based on inconsistencies and omissions

regarding facts central to an alien's asylum claim where a review of

the record reveals that (1) the discrepancies and omissions

described by the IJ are actually present; (2) these discrepancies and

omissions provide specific and cogent reasons to conclude that the

alien provided incredible testimony; and (3) a convincing

explanation for the discrepancies and omissions has not been

supplied by the alien. Matter of A-S-, 21 I&N Dec. 1106 (BIA

1998).

(4) An asylum applicant does not meet his burden of proof by general

and meager testimony. Specific, detailed, and credible testimony

or a combination of detailed testimony and corroborative

background evidence is necessary to prove a case for asylum. The

weaker an applicant's testimony, the greater the need for

corroborative evidence. Matter of Y-B-, 21 I&N Dec. 1136 (BIA

1998).

(5) An alien who did not provide any evidence to corroborate his

purported identity, nationality, claim of persecution, or his former

presence or his family's current presence at a refugee camp, where

it was reasonable to expect such evidence, failed to meet his
page 187 of 365

burden of proof to establish his asylum claim. Matter of M-D-, 21

I&N Dec. 1180 (BIA 1998), vacated by Diallo v. INS, 232 F.3d

279 (2d Cir. 2000).

J. The Convention Against Torture

1. Article 3 of the United Nations Convention against Torture and other Cruel,

Inhuman or Degrading Treatment or Punishment.

2. History lesson - The Convention Against Torture has been in effect in the U.S.

since November 20, 1994. However, there was no statutory provision to

implement Article 3 of the Convention Against Torture in United States

domestic law. Therefore, the Board held that it lacked jurisdiction to

adjudicate a claim for relief from deportation pursuant to Article 3 of the

United Nations Convention against Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment, as there had been no specific legislation

to implement the provisions of Article 3, no regulations had been

promulgated with respect to Article 3, and the United States Senate has

declared that Article 3 is a non-self-executing treaty provision. Matter of HM-V-, 22 I&N Dec. 256 (BIA 1998). On October 21, 1998, the President

signed into law legislation which required that “[n]ot later than 120 days after

the date of enactment of this Act, the heads of the appropriate agencies shall

prescribe regulations to implement the obligations of the United States under

Article 3 of the United Nations Convention Against Torture and Other Forms

of Cruel, Inhuman or Degrading Treatment or Punishment, subject to any

reservations, understandings, declarations, and provisos contained in the

United States Senate resolution of ratification of the Convention.” The

regulations took effect March 22, 1999.

3. Definition of “torture.”

a. 8 C.F.R. § 1208.18(a)(1) states, “Torture is defined as any act by which

severe pain or suffering, whether physical or mental, is intentionally

inflicted on a person for such purposes as obtaining from him or her or a

third person information or a confession, punishing him or her for an act

he or she or a third person has committed or is suspected of having

committed, or intimidating or coercing him or her or a third person, or

for any reason based on discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official

capacity.”

(1) An applicant for protection under Article 3 of the Convention

against Torture must establish that the torture feared would be

inflicted by or with the acquiescence of a public official or other

person acting in an official capacity; therefore, protection does not

extend to persons who fear entities that a government is unable to
page 188 of 365

control. Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) overruled

on other grounds by Hakim v. Holder, 628 F.3d 151 (5th Cir.

2010); Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003).

b. 8 C.F.R. § 1208.18(a)(2) states, “Torture is an extreme form of cruel and

inhuman treatment and does not include lesser forms of cruel, inhuman

or degrading treatment or punishment that do not amount to torture.”

c. 8 C.F.R. § 1208.18(a)(3)states, “Torture does not include pain or

suffering arising only from, inherent in or incidental to lawful sanctions. 

Lawful sanctions include judicially imposed sanctions and other

enforcement actions authorized by law, including the death penalty, but

do not include sanctions that defeat the object and purpose of the

Convention Against Torture to prohibit torture.”

d. 8 C.F.R. § 1208.18(a)(4) provides that, in order to constitute torture,

mental pain or suffering must be prolonged mental harm caused by or

resulting from:

(1) The intentional infliction or threatened infliction of severe physical

pain or suffering;

(2) The administration or application, or threatened administration or

application, of mind altering substances or other procedures

calculated to disrupt profoundly the senses or the personality;

(3) The threat of imminent death; or

(4) The threat that another person will imminently be subjected to

death, severe physical pain or suffering, or the administration or

application of mind altering substances or other procedures

calculated to disrupt profoundly the sense or personality.

e. 8 C.F.R. § 1208.18(a)(5) provides that, in order to constitute torture, an

act must be specifically intended to inflict severe physical or mental pain

or suffering. An act that results in unanticipated or unintended severity

of pain and suffering is not torture.

f. 8 C.F.R. § 1208.18(a)(6) states, “In order to constitute torture an act

must be directed against a person in the offender's custody or physical

control.”

g. 8 C.F.R. § 1208.18(a)(7) states that acquiescence of a public official

requires that the public official, prior to the activity constituting torture,

have awareness of such activity and thereafter breach his or her legal

responsibility to intervene to prevent such activity.
page 189 of 365

h. 8 C.F.R. § 1208.18(a)(8) states, “Noncompliance with applicable legal

procedural standards does not per se constitute torture.”

4. Eligibility in spite of frivolous asylum application. Section 208(d)(6) of the

Act provides that if the Attorney General determines that an alien has

knowingly made a frivolous application for asylum and the alien has received

the notice under section 208(d)(4)(A) of the consequences of knowingly filing

a frivolous application for asylum, the alien shall be permanently ineligible for

any benefits under the Act, effective as of the date of a final determination of

such application. However 8 C.F.R. § 1208.20 provides that a finding that an

alien filed a frivolous asylum application shall not preclude the alien from

seeking withholding of removal.

5. Withholding of removal under the Convention Against Torture.

a. Differences between withholding of removal under section 241(b)(3) of

the Act and withholding of removal under Article 3 of the Convention

Against Torture.

(1) Several categories of individuals, including persons who assisted in

Nazi persecution or engaged in genocide, persons who have

persecuted others, persons who have been convicted of particularly

serious crimes, persons who are believed to have committed

serious non-political crimes before arriving in the United States,

and persons who pose a danger to the security of the United States,

are ineligible for withholding of removal under 241(b)(3)(B) of the

Act. Article 3 of the Convention Against Torture does not exclude

such persons from its scope.

(2) Section 241(b)(3) applies only to aliens whose life or freedom

would be threatened on account of race, religion, nationality, or

membership in a particular social group or political opinion. 

Article 3 covers persons who fear torture that may not be motivated

by one of those five grounds.

(3) The definition of torture does not encompass all types of harm that

might qualify as a threat to life or freedom. Thus, the coverage of

Article 3 is different from that of section 241(b)(3): broader in

some ways and narrower in others.

b. 8 C.F.R. § 1208.16(c)(2) provides that the burden of proof is on the

applicant for withholding of removal under the Convention Against

Torture to establish that it is more likely than not that he or she would be

tortured if removed to the proposed country of removal. That regulation

also provides that the testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without corroboration.
page 190 of 365

c. 8 C.F.R. § 1208.16(c)(3) provides that in assessing whether it is more

likely than not that an applicant would be tortured in the proposed

country of removal, all evidence relevant to the possibility of future

torture shall be considered, including, but not limited to:

(1) Evidence of past torture inflicted upon the applicant;

(2) Evidence that the applicant could relocate to a part of the country

of removal where he or she is not likely to be tortured;

(3) Evidence of gross, flagrant or mass violations of human rights

within the country of removal, where applicable; and

(4) Other relevant information regarding conditions in the country of

removal.

d. Specific decisions.

(1) The indefinite detention of criminal deportees by Haitian

authorities does not constitute torture within the meaning of 8

C.F.R. § 1208.18(a) where there is no evidence that the authorities

intentionally and deliberately detain deportees in order to inflict

torture. Matter of J-E-, 23 I&N Dec. 291 (BIA 2002).

(2) Substandard prison conditions in Haiti do not constitute torture

within the meaning of 8 C.F.R. 1208.18(a) where there is no

evidence that the authorities intentionally create and maintain such

conditions in order to inflict torture. Matter of J-E-, 23 I&N Dec.

291 (BIA 2002); Pierre v. Holder, 528 F.3d 180 (3d Cir. 2008). 

The First Circuit has also held that Haiti’s substandard detention

conditions did not amount to torture under the Convention Against

Torture, even though detainees faced overcrowding, physical

striking by Haitian authorities, unsanitary conditions, and

deprivation of food, water, and medical care. See Gourdet v.

Holder, 587 F.3d 1 (1st Cir. 2009). The Eighth Circuit upheld the

Board’s reversal of CAT relief grant for an alien who was returning

to indefinite imprisonment in Haiti, stating that torture requires a

“specific intent” on the part of the government to inflict severe

physical or mental pain or suffering on the returned alien. 

Cherichel v. Holder, 591 F.3d 1002 (8th Cir. 2010). 

(3) An Iranian Christian of Armenian descent demonstrated that it is

more likely than not he will be tortured if returned to Iran based on

a combination of factors, including his religion, his ethnicity, the

duration of his residence in the U.S., and his drug-related

convictions in the U.S. Matter of G-A-, 23 I&N Dec. 366 (BIA

2002).
page 191 of 365

(4) In Matter of M-B-A-, 23 I&N Dec. 474 (BIA 2002), the Board held

that in an application for deferral of removal under Article 3 of the

Convention Against Torture, it is not sufficient for a respondent

simply to cite the existence of Decree No. 33 in Nigeria which

provides that a Nigerian citizen who is convicted of a narcotic drug

offense in a foreign country, or who is detected carrying a narcotic

drug into a foreign country after a journey originating from Nigeria

shall be liable for imprisonment for a term of five years. The Board

stated, “The respondent must provide some current evidence, or at

least more meaningful historical evidence, regarding the manner of

enforcement of the provisions of Decree No. 33 on individuals

similarly situated to herself. The respondent’s eligibility for

deferral of removal rests upon a finding that it is more likely than

not that she will be identified as a convicted drug trafficker upon

her return to Nigeria; that, as a result, she will be detained on

arrival; that, when detained, she will be held in detention without

access to bail or judicial oversight; that she will be detained for a

significant period of time; and that, as a result of this detention, she

will suffer mistreatment that rises to the level of torture at the

hands of prison guards or authorities. Given the evidence of harsh

and life-threatening prison conditions in Nigeria and the serious

drug trafficking problems that Nigerian authorities are attempting

to address, the respondent’s fear of return to her home country is

understandable. On the record before us, however, we find that the

respondent’s case is based on a chain of assumptions and a fear of

what might happen, rather than evidence that meets her burden of

demonstrating that it is more likely than not that she will be

subjected to torture . . . .”

e. 8 C.F.R. § 1208.16(c)(4) states that in considering an application for

withholding of removal under the Convention Against Torture, the IJ

shall first determine whether the alien is more likely than not to be

tortured in the country of removal. If the IJ determines that the alien is

more likely than not to be tortured in the country of removal, the alien is

entitled to protection under the Convention Against Torture. Protection

under the Convention Against Torture will be granted either in the form

of withholding of removal or in the form of deferral of removal. An

alien entitled to such protection shall be granted withholding of removal

unless the alien is subject to mandatory denial of withholding of removal

under 8 C.F.R. § 1208.16(d)(2) or (d)(3). If an alien entitled to such

protection is subject to mandatory denial of withholding of removal

under 8 C.F.R. § 1208.16(d)(2) or (d)(3), the alien's removal shall be

deferred under 8 C.F.R. § 1208.17(a).

6. Deferral of removal under the Convention Against Torture.
page 192 of 365

a. 8 C.F.R. § 1208.17(a) provides that an alien who: (1) has been ordered

removed; (2) has been found under 8 C.F.R. § 1208.16(c)(3) to be

entitled to protection under the Convention Against Torture; and (3) is

subject to the provisions for mandatory denial of withholding of removal

under 8 C.F.R. § 1208.16(d)(2) or (d)(3), shall be granted deferral of

removal to the country where he or she is more likely than not to be

tortured. 

b. Notice which IJ must give to respondent. 8 C.F.R. § 1208.17(b) requires

an IJ who orders an alien described in 8 C.F.R. § 1208.17(a) removed, to

inform the alien that his or her removal to the country where he or she is

more likely than not to be tortured shall be deferred until such time as

the deferral is terminated under this section. The IJ shall inform the

alien that deferral of removal:

(1) does not confer upon the alien any lawful or permanent

immigration status in the United States;

(2) will not necessarily result in the alien being released from the

custody of the Service if the alien is subject to such custody;

(3) is effective only until terminated; and

(4) is subject to review and termination if the IJ determines that it is

not likely that the alien would be tortured in the country to which

removal has been deferred, or if the alien requests that deferral be

terminated.

c. The IJ shall also inform the alien that removal has been deferred only to

the country in which it has been determined that the alien is likely to be

tortured, and that the alien may be removed at any time to another

country where he or she is not likely to be tortured.

d. An alien’s eligibility for deferral of removal under the Convention

Against Torture cannot be established by stringing together a series of

suppositions to show that it is more likely than not that torture will result

where the evidence does not establish that each step in the hypothetical

chain of events is more likely than not to happen. Matter of J-F-F-, 23

I&N Dec. 912 (A.G. 2006).

7. Termination of deferral of removal.

a. Termination at the request of the Service.

(1) 8 C.F.R. § 1208.17(d)(1) provides that at any time while deferral of

removal is in effect, the INS District Counsel for the District with

jurisdiction over an alien whose removal has been deferred under 8
page 193 of 365

C.F.R. § 1208.17(a) may file a motion with the Immigration Court

having administrative control pursuant to 8 C.F.R. § 1003.11 to

schedule a hearing to consider whether deferral of removal should

be terminated. The Service motion shall be granted if it is

accompanied by evidence that is relevant to the possibility that the

alien would be tortured in the country to which removal has been

deferred and that was not presented at the previous hearing. The

Service motion shall not be subject to the requirements for

reopening in 8 C.F.R. §§ 1003.2 and 1003.23.

(2) 8 C.F.R. § 1208.17(d)(2) provides that the Immigration Court shall

provide notice to the alien and the Service of the time, place, and

date of the termination hearing. Such notice shall inform the alien

that the alien may supplement the information in his or her initial

application for withholding of removal under the Convention

Against Torture and shall provide that the alien must submit any

such supplemental information within 10 calendar days of service

of such notice (or 13 calendar days if service of such notice was by

mail). At the expiration of this 10 or 13 day period, the

Immigration Court shall forward a copy of the original application,

and any supplemental information the alien or the Service has

submitted, to the Department of State, together with notice to the

Department of State of the time, place and date of the termination

hearing. At its option, the Department of State may provide

comments on the case, according to the provisions of 8 C.F.R. §

1208.11.

(3) 8 C.F.R. § 1208.17(d)(3) provides that the IJ shall conduct a

hearing and make a de novo determination, based on the record of

proceeding and initial application in addition to any new evidence

submitted by the Service or the alien, as to whether the alien is

more likely than not to be tortured in the country to which removal

has been deferred. This determination shall be made under the

standards for eligibility set out in 8 C.F.R. § 1208.16(c). The

burden is on the alien to establish that it is more likely than not that

he or she would be tortured in the country to which removal has

been deferred.

(4) 8 C.F.R. § 1208.17(d)(4) provides that if the IJ determines that the

alien is more likely than not to be tortured in the country to which

removal has been deferred, the order of deferral shall remain in

place. If the IJ determines that the alien has not established that he

or she is more likely than not to be tortured in the country to which

removal has been deferred, the deferral of removal shall be

terminated and the alien may be removed to that country. Appeal

of the IJ’s decision shall lie to the Board.
page 194 of 365

b. Termination at the request of the alien.

(1) 8 C.F.R. § 1208.17(e)(1) provides that at any time while deferral of

removal is in effect, the alien may make a written request to the

Immigration Court having administrative control pursuant to 8

C.F.R. § 1003.11 to terminate the deferral order. If satisfied on the

basis of the written submission that the alien's request is knowing

and voluntary, the IJ shall terminate the order of deferral and the

alien may be removed.

(2) 8 C.F.R. § 1208.17(e)(2) allows an IJ, if necessary, to calendar a

hearing for the sole purpose of determining whether the alien's

request is knowing and voluntary. If the IJ determines that the

alien's request is knowing and voluntary, the order of deferral shall

be terminated. If the IJ determines that the alien's request is not

knowing and voluntary, the alien's request shall not serve as the

basis for terminating the order of deferral.

c. Termination pursuant to 8 C.F.R. § 1208.18(c), which provides that at

any time while deferral of removal is in effect, the Attorney General may

determine whether deferral should be terminated based on diplomatic

assurances forwarded by the Secretary of State pursuant to the

procedures in 8 C.F.R. § 1208.18(c). 

K. Adjustment of status - Section 245 of the Act and 8 C.F.R. § 1245.1, et seq.

1. Introduction. Adjustment of status allows an alien who is not an immigrant

(or deportable immigrant, if qualified) who is in the U.S. to adjust status to

that of a lawful permanent resident (LPR) without leaving the U.S. to obtain

an immigrant visa and re-entering the U.S. as an immigrant. The date of

adjustment of status may be considered an admission in some circumstances.

See Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011).

a. If adjustment of status is denied by a DD or IJ, either for failure to

establish statutory eligibility or as a matter of discretion, the denial

simply means that the alien cannot seek consular processing abroad by

applying for a visa at an American Consulate. The Consul will

determine if the alien is eligible to receive a visa. If the alien receives a

visa, he may then apply for admission to the U.S. At that time, if he is

believed to be inadmissible under section 212(a), his admissibility may

be determined in removal proceedings.

2. Jurisdiction.

a. In the case of an any alien who has been placed in deportation

proceedings or removal hearings (other than an arriving alien), the IJ

hearing the proceeding has exclusive jurisdiction to adjudicate any
page 195 of 365

application for adjustment of status. 8 C.F.R. § 1245.2(a)(1) (amended

71 Fed. Reg. 27585 (May 12, 2006)).

b. Arriving Aliens

.

(1) History lesson - There was a split of the Circuit Court of Appeals

regarding the validity of 8 C.F.R. § 1245.1(c)(8) which precluded

an arriving alien from adjusting status before an IJ. The First,

Third, and Ninth Circuit, and Eleventh Circuits held that this

regulation was invalid. Succar v. Ashcroft, 394 F.3d 8 (1st Cir.

2005); Zheng-Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005);

Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005); Scheerer v.Att’y

Gen., 445 F.3d 1311 (11th Cir. 2006). The Fifth and Eighth

Circuits concluded that 8 C.F.R. § 1245.1(c)(8) was valid. Momin

v. Gonzales, 447 F.3d 447 (5th Cir. 2006), vacated and remanded,

462 F.3d 497 (5th Cir. 2006); Mouelle v. Gonzales, 416 F.3d 923

(8th Cir. 2005), vacated, 126 S.Ct. 2964 (2006).

(2) PRESENT LAW - On May 12, 2006, the Attorney General

amended the regulations by removing 8 C.F.R. § 1245.1(c)(8) to

resolve the circuit conflict. 71 Fed. Reg. 27585 (May 12, 2006). 

Further, 8 C.F.R. § 1245.2(a)(1)(ii) was amended to read as

follows: “Arriving aliens. In the case of an arriving alien who is

placed in removal proceedings, the immigration judge does not

have jurisdiction to adjudicate any application for adjustment of

status . . . .” Id. The new regulation retains a narrow exception for

an alien who leaves the United States while an adjustment

application is pending with USCIS, and then returns under a grant

of advance parole; an IJ would have jurisdiction to adjudicate the

alien’s renewed adjustment application if that application had been

denied by USCIS. Id. See Matter of Silitonga, 25 I&N Dec. 89

(BIA 2009).

c. No appeal lies from a district director’s denial of adjustment. However,

the application may be renewed before the IJ if the alien (other than an

arriving alien) is placed in proceedings. 8 C.F.R. § 1245.2(a)(5)(ii). 

d. Cuban Refugee Adjustment Act– Immigration judges do not have

jurisdiction to adjudicate an application filed by an arriving alien seeking

adjustment of status under the Cuban Refugee Adjustment Act of

November 2, 1966 (Pub. L. No. 89-732, 80 Stat. 1161) unless the alien

has been placed in removal proceedings after returning to the United

States pursuant to a grant of advance parole to pursue a previously filed

application. Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009)

(noting that Matter of Artigas, 23 I&N Dec. 99 (BIA 2001) was

superseded by regulations).
page 196 of 365

(1) The fact that an IJ does not have jurisdiction over applications for

adjustment under the Cuban Refugee Adjustment Act does not

negate his or her jurisdiction over the removal proceedings of

arriving Cuban aliens under section 240 of the Act. Matter of E-RM- & L-R-M-, 25 I&N Dec. 520 (BIA 2011).

e. If both parties agree, an IJ may use a form I-471 to remand an

application for adjustment of status to the district director for his

adjudication. However, an IJ is not permitted to remand a case without

the district director’s consent. Matter of Roussis, 18 I&N Dec. 256 (BIA

1982).

f. Immigration judges have authority to determine whether the validity of

an alien’s approved employment-based visa petition is preserved under

section 204(j) after the alien’s change in jobs or employers. Matter of

Marcal Neto, 25 I&N Dec. 169 (BIA 2010) (overruling Matter of Perez

Vargas, 23 I&N Dec. 829 (BIA 2005)).

3. Substantive requirements. In order to qualify for adjustment of status, section

245(a) of the Act states that a respondent must prove that he or she:

a. has been inspected and admitted (or paroled when the application is

before the DD);

(1) An alien who was released from custody on conditional parole

pursuant to section 236(a)(2)(B) of the Act has not been “paroled

into the United States” for purposes of establishing eligibility for

adjustment of status under section 245(a) of the Act. Matter of

Castillo-Padilla, 25 I&N Dec. 257 (BIA 2010); DelgadoSobalvarro v. Att’y Gen., 625 F.3d 782 (3d Cir. 2010).

(2) For purposes of establishing adjustment of status under section

245(a) of the INA, an alien seeking to show that he or she has been

“admitted” to the United States pursuant to section 101(a)(13)(A)

of the Act, need only prove procedural regularity in his or her

entry, which does not require the alien to be questioned by

immigration authorities or be admitted in a particular status. 

Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010).

(3) To be eligible for adjustment of status, an alien must have been

inspected and admitted or paroled, even if he has been granted

TPS. Serrano v. Att’y Gen., --- F.3d ----, No. 10-12990, 2011 WL

4345670 (11th Cir. Sept. 16, 2011).

b. is admissible under section 212(a) of the Act;
page 197 of 365

(1) A respondent who is inadmissible under section 212(a) may apply

for any available waiver of the ground of inadmissibility in

conjunction with the application for adjustment of status. 8 C.F.R.

§ 1245.1(f). Matter of Gabryelsky, 20 I&N Dec. 750 (BIA 1993). 

(2) The “futility doctrine.” The Board has determined that the rule in

Matter of V-, 1 I&N Dec. 293 (BIA 1942), which held that

notwithstanding lack of a specific statutory ground of exclusion, an

alien who upon entry would immediately become subject to

deportation should be found excludable is not appropriate in the

adjustment of status context and held that it is the Board’s practice

to interpret the requirement of admissibility in section 245(a) with

reference only to the inadmissibility grounds set forth in the Act.

See Matter of Rainford, 20 I&N Dec. 598 (BIA 1992).

c. has an immigrant visa number immediately available to him. 

(1) A respondent cannot adjust status unless he is the beneficiary of a

valid unexpired visa petition. INA § 245(a). Jurisdiction to

adjudicate visa petitions is vested solely in the DD. An IJ has no

authority to approve or deny a visa petition. Matter of Ching, 15

I&N Dec. 772 (BIA 1976).

(a) Fraudulent marriages. Section 204(c) of the Act provides

that no visa petition shall be approved if: (1) the alien has

previously been accorded, or has sought to be accorded,

immediate relative or preference status as the spouse of a

USC or LPR by reason of a marriage determined by the

Attorney General to have been entered into for the purpose of

evading the immigration laws or (2) the Attorney General has

determined that the alien has attempted or conspired to enter

into a marriage for the purpose of evading the immigration

laws.

(b) Section 204(c) of the Act does not preclude approval of a

second marital visa petition filed by the petitioner on behalf

of the same beneficiary. Matter of Isber, 20 I&N Dec. 676

(BIA 1993).

(c) However, a petitioner who has previously withdrawn a visa

petition and admitted that the marriage was not bona fide

bears a heavy burden of explaining the prior withdrawal. 

Matter of Laureano, 19 I&N Dec. 1 (BIA 1983). Where a

visa petition has once been withdrawn under these

circumstances, any subsequently filed visa petition must

include an explanation of the prior withdrawal and evidence

supporting the bona fides of the parties' relationship. Id.
page 198 of 365

(2) Children. Section 201(f)(1) of the Act, which allows the

beneficiary of an immediate relative visa petition to retain his

status as a “child” after he turns 21, applies to an individual whose

visa petition was approved before the August 6, 2002, effective

date of the Child Status Protection Act (“CSPA”), but who filed an

application for adjustment of status after that date. Matter of

Avila-Perez, 24 I&N Dec. 78 (BIA 2007). Such a beneficiary

would therefore remain an immediate relative. Id.

(a) The CSPA enacted on August 6, 2002, added several

provisions to the Act to protect children from losing their visa

eligibility by aging-out (turning 21 years of age) while their

visa petition or adjustment application was pending. 

See Child Status Protection Act, Pub. L. No. 107-208, 116

Stat. 927 (2002), INA § 203(h). If an alien seeking to adjust

status was under twenty-one years of age when his visa

petition was filed and no final decision was made on the

petition prior to August 6, 2002, the applicant may qualify for

protection under the CSPA. The Act sets forth a

mathematical formula for determining the CSPA age of

children of lawful permanent residents who qualify for

protection under the CSPA. INA § 203(h)(1).

(b) In Matter of Wang, 25 I&N Dec. 28 (BIA 2009), the Board

clarified the application of the automatic conversion and

priority date retention provisions of the Child Status

Protection Act, Pub L. No. 107-208, 116 Stat. 927 (2002)

found at section 203(h)(3) of the Immigration and Nationality

Act. The Board held that the beneficiary of a secondpreference petition filed by her father could not take

advantage of the automatic conversion and priority date

retention provisions where she had aged out of eligibility for

an immigrant visa as the derivative beneficiary of a fourthpreference visa petition filed by her aunt on behalf of her

father. The Board found that “[w]hen she aged out from her

status as a derivative beneficiary on a fourth-preference

petition, there was no other category to which her visa could

convert because no category exists for the niece of a United

States citizen.” Id. at 35. The Board found that the retention

language of section 203(h) was meant to apply only where

the visa petitions were filed by the same family member and

that, therefore, she could not retain the priority date from the

petition filed by her aunt for the petition filed by her father.

Id. at 35-36. See Cuellar de Osorio v. Mayorkas, --- F.3d ----,

Nos. 09-56796, 09-56846, 2011 WL 3873797 (9th Cir. Sept.
page 199 of 365

2, 2011) (holding that Board reasonably interpreted

ambiguous provision of CSPA). 

i) In Khalid v. Holder, --- F.3d ----, No. 10-60373, 2011

WL 3925337 (5th Cir. Sept. 8, 2011), the Fifth Circuit

declined to follow Matter of Wang, 25 I&N Dec. 28

(BIA 2009), holding that section 203(h)(3) of the Act

was not ambiguous because the issue of which petitions

qualify for automatic conversion and retention of

priority dates was answered directly by section

203(h)(2). Because the court found the statute to be

unambiguous, it did not afford Chevron deference to the

Board’s interpretation of that section. Id.

(c) The Child Status Protection Act does not apply to applicants

of the Haitian Refugee Immigration Fairness Act of 1998. 

Midi v. Holder, 566 F.3d 132 (4th Cir. 2009).

(d) The Eleventh Circuit held that the phrase “sought to acquire”

in the CSPA is broad enough to encompass substantial steps

taken toward the filing of the relevant application during the

relevant time period, but does not require that the alien

actually file or submit the application. Tovar v. Att’y Gen.,

646 F.3d 1300 (11th Cir. 2011).

(e) An individual who applies for an adjustment of status under

section 245(d) as a K-2 visa holder (minor child of a fiancé of

a U.S. citizen) must be under twenty-one years of age on the

date that he or she seeks to enter the U.S., but need not be

under twenty-one when his or her application for adjustment

of status is adjudicated. Carpio v. Holder, 592 F.3d 1091

(10th Cir. 2010). “The date that the individual ‘seeks to enter

the United States’ may be plausibly read as either (a) the date

that the United States citizen files a petition for K-1 or K-2

visas with the Secretary of Homeland Security under INA §

214(d)(1) or (b) the date that the K-1 or K-2 visa applications

are filed with the consular officer in the country of origin.”

Id. The court concluded that the date-of-adjudication

approach was fundamentally unfair.

(f) The Seventh Circuit held that the effective date of the CSPA

applies to an alien whose mother’s classification petition was

approved prior to the enactment of the CSPA and whose

adjustment applications were denied after the enactment of

the CSPA. Arobelidze v. Holder, 653 F.3d 513 (7th Cir.

2011).
page 200 of 365

(3) Adopted children.

(a) An adopted child, as defined by section 101(b)(1)(E) of the

Act, may not confer immigration benefits upon a natural

parent without regard to whether the adopted child has been

accorded or could be accorded immigration benefits by virtue

of his or her adopted status. Matter of Li, 20 I&N Dec. 700

(BIA 1993).

(b) An adopted child under the immigration laws may not confer

immigration benefits upon his natural sibling because their

common natural parent no longer has the status of parent of

the adopted child for immigration purposes. Matter of Li, 20

I&N Dec. 700 (BIA 1993).

(c) If the provisions of section 101(b)(1)(E) of the Act have been

invoked to confer an immigration benefit by virtue of an

adoptive relationship, the natural relationship will not

therefore be recognized for immigration purposes even if it is

established that the adoptive relationship has been legally

terminated. Matter of Li, 21 I&N Dec. 13 (BIA 1995). A

natural parent-child relationship may again be recognized for

immigration purposes following the legal termination of an

adoption that meets the requirements of section 101(b)(1)(E)

if the petitioner can establish the following 4 criteria:

i) That no immigration benefit was obtained or conferred

through the adoptive relationship;

ii) That a natural parent-child relationship meeting the

requirements of section 101(b) once existed;

iii) That the adoption has been legally terminated under

applicable law; and

iv) That the natural relationship has been reestablished by

law. Id. at 17-18.

(d) The Board has ruled that a child who was adopted while

under the age of 18, and whose natural sibling was adopted

by the same parents while under the age of 16, can qualify as

a “child” under section 101(b)(1)(E) regardless of the order in

which the two children were adopted. The Board rejected

DHS’s argument that, for an older sibling to qualify as a

“child” under these circumstances, the older sibling’s

adoption must have preceded that of the younger child. 

Matter of Anifowoshe, 24 I&N Dec. 442 (BIA 2008).
page 201 of 365

d. It is improper for an IJ to enter a “conditional” grant of adjustment of

status which is effective upon the happening of a future event, such as a

visa petition being approved, or a visa number becoming available. 

Fulgencio v. INS, 573 F.2d 596 (9th Cir. 1978); Matter of Reyes, 17

I&N Dec. 239 (BIA 1980). However, in Matter of Reyes, the Board

implied that the presence of a condition does not void the IJ’s order. The

Board considered the order to be final and stated that if the INS wished

to attack the adjustment, it should institute rescission proceedings under

section 246 of the Act.

e. A respondent is also ineligible to adjust status if the approval of the visa

petition has been revoked prior to the deportation hearing in spite of the

language of section 245(a)(3), “a visa immediately available at the time

the application is filed.” Kalezic v. INS, 647 F.2d 920 (9th Cir. 1981).

(1) Visa petitions may be revoked automatically (through withdrawal

by the petitioner, death of the petitioner, divorce, etc.) or by the DD

on notice to the petitioner. INA § 205; 8 C.F.R. § 1205.1 et seq.

(2) At the discretion of the DD, the petitioner's death may not 

automatically terminate the petition. 8 C.F.R. § 1205.1(a)(3)(i)(C). 

Neither IJ’s nor the Board have jurisdiction to review the DD’s

decision in such a case. Matter of Aurelio, 19 I&N Dec. 458 (BIA

1987).

(3) A DD’s decision to revoke a visa petition on notice is appealable to

the Board. 8 C.F.R. § 1205.2(d). However, IJs do not appear to

have authority to review the DD's decision.

f. Respondent must merit a favorable exercise of discretion.

(1) The grant of an application for adjustment of status is a matter of

administrative grace and an applicant has the burden of showing

that discretion should be exercised in his favor. Matter of Patel, 17

I&N Dec. 597 (BIA 1980); Matter of Marques, 16 I&N Dec. 314

(BIA 1977); Matter of Leung, 16 I&N Dec. 12 (BIA 1976); Matter

of Arai, 13 I&N Dec. 494 (BIA 1970); Matter of Ortiz-Prieto, 11

I&N Dec. 317 (BIA 1965). Where adverse factors are present, it

may be necessary for the applicant to offset those factors by a

showing of unusual or even outstanding equities. Matter of Patel,

17 I&N Dec. 597 (BIA 1980); Matter of Arai, 13 I&N Dec. 494

(BIA 1970).

(2) In the absence of substantial equities, adjustment of status is

denied, as a matter of discretion, to an alien who, in an effort to

accelerate his immigration following marriage in his native country
page 202 of 365

to a lawful permanent resident, entered the U.S. as a nonimmigrant

visitor with the preconceived plan of joining his wife here and

remaining permanently, thereby circumventing the normal

immigrant visa issuing process by the U.S. consul abroad. Matter

of Rubio-Vargas, 11 I&N Dec. 167 (BIA 1965).

(3) Adjustment of status is denied as a matter of discretion to a

nonimmigrant visitor who, by his conflicting and evasive

testimony, failed to establish that he did not intend to circumvent

the normal immigrant visa issuing process by the U.S. consul

abroad. Matter of Diaz-Villamil, 10 I&N Dec. 494 (BIA 1964).

(4) An applicant for adjustment of status is not required by the statute

or the regulations to establish GMC. Therefore, the provisions of

section 101(f) of the Act are not literally applicable to an applicant

for adjustment. However, GMC is a factor which must be

considered in determining whether a favorable exercise of

discretion is warranted in a particular case. Matter of Francois, 10

I&N Dec. 168 (BIA 1963); Matter of Pires Da Silva, 10 I&N Dec.

191 (BIA 1963), modified by Matter of Krastman, 11 I&N Dec.

720 (BIA 1966). In order to merit a favorable exercise of

discretion, GMC must exist for a reasonable period of time. Matter

of Francois, 10 I&N Dec. 168 (BIA 1963); Matter of Pires Da

Silva, 10 I&N Dec. 191 (BIA 1963). Therefore, an alien convicted

fairly recently of a CIMT who is at liberty only upon the restraint

exercised by the terms of his probation and who has been married

only a short time does not merit a favorable exercise of discretion

on an application for adjustment of status. Matter of Francois, 10

I&N Dec. 168 (BIA 1963).

(5) A respondent’s application for adjustment was denied as a matter

of discretion where he had worked without authorization during the

3 year period in which he was classified as a nonimmigrant student

knowing that his employment was unlawful and on 3 separate

occasions had made false statements about that employment in

applications for benefits under the Act. Matter of Patel, 17 I&N

Dec. 597 (BIA 1980).

(6) In applications for adjustment of status, the Act makes immediate

relative status a special and weighty equity which should prevail in

the absence of significant adverse factors. Matter of Ibrahim, 18

I&N Dec. 55 (BIA 1981); Matter of Cavazos, 17 I&N Dec. 215

(BIA 1980).

4. Aliens who are ineligible to adjust.
page 203 of 365

a. Because section 245(a) states that an alien must be inspected and

admitted or paroled in order to adjust status, an alien who is present in

the U.S. without being inspected and admitted (previously called an

alien who entered without inspection) is ineligible to adjust. However,

such an alien may adjust if he or she is the beneficiary of a visa petition

or labor certification filed on his or her behalf on or before April 30,

2001 and pays the amount set forth in section 245(i) of the Act.

b. Adjustment of status is not available to an alien who entered the U.S. as

a crewman. INA § 245(c)(1). However, such an alien may adjust if he

or she is the beneficiary of a visa petition or labor certification filed in

his or her behalf on or before April 30, 2001 and pays the amount set

forth in section 245(i) of the Act.

(1) The term “crewman” is defined in section 101(a)(10) of the Act. 

As one of the nonimmigrant classes, it is discussed in section

101(a)(15)(D). For purposes of suspension of deportation and

adjustment of status, an alien may be considered a “crewman” even

if he was not admitted to the U.S. as a D-1. The Board decisions

on this point are confusing and contradictory. A good history of

this point and a discussion of each case addressing the issue may

be found in Matter of Loo, 15 I&N Dec. 601 (BIA 1976).

(2) Perhaps in an effort to bring order out of the confusing decisions,

the regulations state that an alien is ineligible to adjust status if, on

arrival in the U.S., he was serving in any capacity on board a vessel

or aircraft or was destined to join a vessel or aircraft in the U.S. to

serve in any capacity thereon. 8 C.F.R. § 1245.1(b)(2).

c. Adjustment of status is not available to an alien who entered as a transit

without a visa. INA § 245(c)(3); 8 C.F.R. § 1245.1(b)(1). However,

such an alien may adjust if he or she is the beneficiary of a visa petition

or labor certification filed in his or her behalf on or before April 30,

2001 and pays the amount set forth in section 245(i) of the Act.

d. Adjustment of status is not available to an alien who was admitted

through the Visa Waiver Program (“VWP”). Bayo v. Napolitano, 593

F.3d 495 (7th Cir. 2010). Non-Visa Waiver Program aliens are held to

VWP program requirements if they are admitted through the VWP. Id.

However, the adjustment of status statute contains a limited exception,

providing that discretionary adjustment of status relief is available to an

alien admitted under the VWP program on one ground, as “an immediate

relative.” INA § 245(c)(4). See Lang v. Napolitano, 596 F.3d 426, 428

(8th Cir. 2010). 

e. Adjustment of status is not available to an alien who continues in or

accepts unauthorized employment (i.e. employed without the DHS’s
page 204 of 365

permission) prior to filing the application for adjustment of status,

except immediate relatives under section 201(b) of the Act or special

immigrants described in section 101(a)(27)(H), (J), (K) or (I). INA §

245(c)(2). However, such an alien may adjust if he or she is the

beneficiary of a visa petition or labor certification filed in his or her

behalf on or before April 30, 2001 and pays the amount set forth in

section 245(i) of the Act. Also, the Departments of Commerce, Justice,

and State, the Judiciary, and Related Agencies Appropriations Act, 1998,

H.R. 2267 (Public Law 105-119) amended section 245(c) to provide that

employment-based immigrants are allowed to apply for adjustment even

if they failed to continuously maintain status, engaged in unauthorized

employment, or otherwise violated the terms and conditions of their

admission for an aggregate period which did not exceed 180 days.

(1) The provision regarding unauthorized employment was added to

section 245 by an amendment in 1976. Although section 245(c)(2)

does not state an effective date, the regulations provide that aliens

(other than immediate relatives and the special immigrants

exempted by the statute) who were employed without authorization

on or after January 1, 1977 are ineligible for adjustment. 8 C.F.R. §

1245.1(b)(4).

(2) The term “employment” includes self-employment and is not

limited to acting as an employee for another. Matter of Tong, 16

I&N Dec. 593 (BIA 1978).

(3) An alien’s employment is unauthorized when it has not been

approved by DHS. Since a labor certification is approved by the

Department of Labor, an approved labor certification does not

operate to authorize employment. Matter of Raol, 16 I&N Dec.

466 (BIA 1978).

(4) A respondent who engages in fund-raising activities as part of

missionary work for a church in which he is a minister is

considered employed and not an unpaid volunteer if he receives his

full support from the church. Matter of Hall, 18 I&N Dec. 203

(BIA 1982).

(5) A respondent who, without permission, engages in purely religious

activities on behalf of a church and is compensated for these

activities, is considered to be employed. Matter of Bennett, 19

I&N Dec. 21 (BIA 1984).

f. Adjustment of status is not available to an alien who was not in legal

immigration status on the date of filing the adjustment application or

who has failed to maintain a legal status since entry, except immediate

relatives under section 201(b) of the Act and special immigrants
page 205 of 365

described in section 101(a)(27)(H), (J), (K) or (I). INA § 245(c)(2). 

However, such an alien may adjust if he or she is the beneficiary of a

visa petition or labor certification filed in his or her behalf on or before

April 30, 2001 and pays the amount set forth in section 245(i) of the Act. 

Also, the Departments of Commerce, Justice, and State, the Judiciary,

and Related Agencies Appropriations Act, 1998, H.R. 2267 (Public Law

105-119) amended section 245(c) to provide that employment-based

immigrants are allowed to apply for adjustment even if they failed to

continuously maintain status, engaged in unauthorized employment, or

otherwise violated the terms and conditions of their admission for an

aggregate period which did not exceed 180 days.

(1) The requirement of maintaining a legal status was added to section

245 by an amendment on November 6, 1986. The wording of the

statute does not indicate an effective date, but the regulations

provide that any alien who on or after November 6, 1986 is not in

lawful immigration status on the date of filing an application for

adjustment is ineligible to adjust (except immediate relatives and

the special immigrants exempted by the statute). 8 C.F.R. §

1245.1(b)(5).

g. Adjustment of status is unavailable to an alien (other than an immediate

relative defined in section 201(b)) who was admitted as a nonimmigrant

visitor without a visa under section 212(l) or section 217. INA §

245(c)(4). However, such an alien may adjust if he or she is the

beneficiary of a visa petition or labor certification filed in his or her

behalf on or before April 30, 2001 and pays the amount set forth in

section 245(i) of the Act.

h. Adjustment of status is unavailable to an alien admitted as a

nonimmigrant under section 101(a)(15)(S) of the Act [one who is to

provide information about a criminal or terrorist organization]. INA §

245(c)(5). However, such an alien may adjust if he or she is the

beneficiary of a visa petition or labor certification filed in his or her

behalf on or before April 30, 2001 and pays the amount set forth in

section 245(i) of the Act. In addition to section 245(i), such an alien

should also be able to adjust under section 245(j).

i. Adjustment of status is not available to an alien who is an alien lawfully

admitted to the U.S. for permanent residence on a conditional basis

under sections 216 or 216A of the Act. INA § 245(d), (f).

(1) While the statutory language leaves open the question of whether

the bar to adjustment of status extends to an alien whose status as a

conditional permanent resident has been terminated, the Board

found that the DHS’s regulation at 8 C.F.R. § 245.1(b)(12) (1991)

[now 8 C.F.R. § 1245.1(c)(5)] clearly applied the bar only to aliens
page 206 of 365

currently holding conditional permanent resident status. Therefore,

the Board held that section 245(d) of the Act does not prohibit an

alien whose conditional permanent resident status has been

terminated from adjusting status under section 245(a). Matter of

Stockwell, 20 I&N Dec. 309 (BIA 1991).

j. Adjustment of status is not available to an alien who entered the U.S. as

a K-1 or a K-2, except if the K-1 marries the USC petitioner, the status

of the K-1 and/or the K-2 may be adjusted to that of an alien lawfully

admitted on a conditional basis under section 216. INA § 245(d).

(1) A K-1 visa holder can only adjust status based on the marriage to

the fiancé(e) petitioner. Matter of Sesay, 25 I&N Dec. 431, 437

(BIA 2011). A K-1 visa holder is not subject to the provision for

conditional resident status under section 216 of the Act if that K-1

visa holder’s bona fide marriage to the fiancé(e) petitioner is more

than two years old at the time the adjustment application is

adjudicated. Id. at 440-41. The K-1 visa holder satisfies the visa

eligibility and visa availability requirements of section 245(a) of

the Act on the date the K-1 visa holder is admitted to the United

States as a K-1 nonimmigrant so long as the K-1 visa holder enters

into a bona fide marriage with the fiancé(e) petitioner within 90

days of that date. Id. at 440. If the K-1 visa holder can demonstrate

that he or she entered into a bona fide marriage to the fiancé(e)

petitioner within the 90-day period, the K-1 visa holder may be

granted adjustment of status under sections 245(a) and (d) of the

Act, even if the marriage to the fiancé(e) petitioner does not exist

at the time that the application for adjustment is adjudicated. Id. at

441.

(2) A derivative child of a K-1 visa holder is not ineligible for

adjustment of status simply by virtue of having turned 21 after

admission to the United States on a K-2 nonimmigrant visa. Matter

of Le, 25 I&N Dec. 541 (BIA 2011).

k. Adjustment of status is not available to an alien who seeks to receive an

immigrant visa on the basis of a marriage entered into during the period

in which administrative or judicial proceedings are pending regarding

the alien's right to enter or remain in the U.S. INA § 245(e)(2).

(1) However, section 245(e)(3) of the Act provides that an alien may

apply for adjustment of status based on a marriage contracted

during proceedings if he establishes by clear and convincing

evidence the following:

(a) That the marriage was entered into in good faith;
page 207 of 365

(b) That the marriage was in accordance with the laws of the

place where the marriage took place;

(c) That the marriage was not entered into for the purpose of

procuring the alien's entry as an immigrant;

(d) That no fee (other than attorney's fees) was given for the

filing of a visa petition.

(2) Section 245(e)(3) was added to the Act by the Immigration Act of

1990. Although the Immigration Act of 1990 was effective on

November 29, 1990, section 702(c) of that Act provided that the

addition of section 245(c)(3) would apply to marriages entered into

before, on, or after the effective date of the Immigration Act of

1990.

(3) 8 C.F.R. § 1245.1(c)(8)(i) provides that the period during which

administrative proceedings are pending begins with

(a) the issuance of Form I-221, Order to Show Cause and Notice

of Hearing prior to June 20, 1991;

(b) the filing of Form I-221, Order to Show Cause and Notice of

Hearing, issued on or after June 20, 1991, with the

Immigration Court;

i) An earlier regulation stated that the period began with

the issuance of the charging document and made no

distinction regarding the date it was issued. This

appeared to be in conflict with 8 C.F.R. § 3.14(a) [now

8 C.F.R. § 1003.14(a)] which states that proceedings

before an IJ commence when a charging document is

filed with the Office of the Immigration Judge (OIJ)

[now the Immigration Court]. The Board addressed the

conflict between former 8 C.F.R. § 3.14(a) and former 8

C.F.R. § 204.1(a)(2)(iii) which defines the period

during which proceedings are pending for approval of a

visa petition as commencing with the issuance of a

charging document rather than its filing with the OIJ

and held that, at least for purposes of section 204(h) of

the Act, the most recent regulation by the Attorney

General controls and a visa petition may not be

approved after issuance of an OSC unless the facts

required by section 245(e)(3) are established. Matter of

Fuentes, 20 I&N Dec. 227 (BIA 1991). Subsequent to

the decision in Fuentes, the regulation was amended to

provide that the period during which the alien is in
page 208 of 365

deportation or exclusion proceedings commences with

the filing with the IJ of an OSC issued on or after June

20, 1991. Therefore, the Board found the Fuentes

decision superceded by the change in the regulation. 

Matter of Casillas, 22 I&N Dec. 154 (BIA 1998).

(c) the issuance of Form I-122, Notice to Applicant for

Admission Detained for Hearing Before Immigration Judge,

prior to April 1, 1997;

(d) the filing of a Form I-862, Notice to Appear, with the

Immigration Court;

(e) the issuance and service of Form I-860, Notice and Order of

Expedited Removal.

(4) 8 C.F.R. § 1245.1(c)(8)(ii) provides that the period in which the

alien is in proceedings terminates:

(a) when the alien departs from the U.S. while an order of

exclusion, deportation, or removal is outstanding or before

the expiration of the voluntary departure time granted in

connection with an alternate order of deportation or removal;

(b) when the alien is found not to be inadmissible or deportable

from the U.S.;

(c) when the Form I-122, I-221, I-860, or I-862 is canceled;

(d) when proceedings are terminated by the IJ or Board; or

(e) when a petition for review or an action for habeas corpus is

granted by a Federal court on judicial review.

(f) Before these regulations were enacted, the Board held that

once deportation proceedings are instituted, they are

considered to be pending until the respondent departs the

U.S. Therefore, if an alien marries a USC after a final order

of deportation or during a period of voluntary departure after

the hearing, he is not eligible for adjustment of status. Matter

of Enriquez, 19 I&N Dec. 554 (BIA 1988).

5. Section 245(i).

a. Section 506(b) of the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations Act of 1995 added

section 245(i) to the Act. It was effective on October 1, 1994 through
page 209 of 365

September 30, 1997 and provided that aliens who entered the U.S.

without inspection or who are within the classes enumerated in section

245(c) of the Act may apply for adjustment of status if they remit with

their application a sum equaling five times the fee plus the regular fee. 

The IIRIRA raised the fee to $1,000. The fee was not required from a

child under the age of 17 or an alien who is the spouse or unmarried

child of an individual who obtained temporary or permanent resident

status under section 210, section 245A, or section 202 of the

Immigration Reform and Control Act of 1986 who was the spouse or

unmarried child as of May 5, 1988, who entered the U.S. before that

date, resided in the U.S. on that date, is not a LPR, and applied for the

benefits of section 301(a) of the Immigration Act of 1990.

b. Section 245(i) explicitly exempts aliens adjusting under that section

from the unauthorized employment restrictions of sections 245(c) and

does not mention the provisions of section 245(k) regarding

unauthorized employment. The Board held that neither section 245(c)

nor section 245(k) bar an alien from adjusting under section 245(i). 

Matter of Alania-Martin, 25 I&N Dec. 231 (BIA 2010). The Board

explained that section 245(k) of the Act provides a limited exception to

the bars to adjustment of status under section 245(a) set forth in sections

245(c)(2), (7), and (8); whereas, section 245(i) operates as a total waiver

of any section 245(c) bar for aliens who have the qualifying section

245(i) priority date. Id. at 234. 

c. Therefore, the benefit of section 245(i) was available to the following: 

(1) aliens who entered the U.S. without inspection;

(2) alien crewmen;

(3) aliens employed without authorization; 

(4) aliens in unlawful immigration status on the date the application is

filed or who have failed to maintain a lawful status since entry;

(5) aliens admitted in transit without a visa;

(6) aliens admitted as nonimmigrant visitors without a visa;

(7) aliens admitted under section 101(a)(15)(S).

d. Through inadvertence by Congress, there was another section 245(i),

which should have been designated as section 245(j). It was added by

section 130003(c)(i) of the Violent Crime Control and Law Enforcement

Act of 1994 and is effective with respect to aliens against whom

deportation proceedings are initiated after September 13, 1994. Under
page 210 of 365

that section 245(i), a nonimmigrant admitted under section

101(a)(15)(5)(i) of the Act to provide information about a criminal or

terrorist organization may adjust status to that of a LPR if the alien meets

the criteria set forth in section 245(i)(1) or (2). Notwithstanding the

clerical error in the redundant designation of section 245(i) of the Act,

IJs had jurisdiction to entertain applications for relief based on both

sections. Matter of Grinberg, 20 I&N Dec. 911 (BIA 1994). The

IIRIRA corrected the designation of the second section 245(i) to section

245(j).

e. The remittance required by section 245(i) is by definition a statutorily

mandated “sum” and a requirement separate and apart from the fee

required by the regulations. The “statutory sum” may not be waived by

an IJ pursuant to 8 C.F.R. §§ 1003.24 and 1103.7. Matter of Fesale, 21

I&N Dec. 114 (BIA 1995).

f. The Departments of Commerce, Justice, and State, the Judiciary, and

Related Agencies Appropriations Act, 1998, H.R. 2267 (Public Law

105-119) amended section 245(i) to provide that it applies only to aliens

for whom a visa petition or labor certification was filed on or before

January 14, 1998.

g. The Legal Immigration Family Equity (LIFE) Act amended section

245(i) to extend the sunset date to April 30, 2001. Under the LIFE Act

amendments, all aliens seeking to adjust status under section 245(i) of

the Act on the basis of a visa petition or application for labor

certification filed after January 14, 1998 must have been physically

present in the United States on December 21, 2000. INA § 245(i)(C). 

However, an alien who is the beneficiary of a visa petition filed on or

before January 14, 1998 need not establish that he or she was physically

present on December 21, 2000. See 8 C.F.R. § 1245.10(n)(1). 

(1) 8 C.F.R. § 1245.10(i) states that “[t]he denial, withdrawal, or

revocation of the approval of a qualifying immigrant visa petition,

or application for labor certification, that was properly filed on or

before April 30, 2001, and that was approvable when filed, will not

preclude its grandfathered alien (including the grandfathered

alien’s family members) from seeking adjustment of status under

section 245(i) of the Act on the basis of another approved visa

petition, a diversity visa, or any other ground for adjustment of

status under the Act, as appropriate.” The Board has ruled that an

alien seeking to establish eligibility for adjustment of status under

section 245(i) on the basis of a marriage-based visa petition must

show that the marriage was bona fide at its inception in order to

show that the visa petition was “approvable when filed” under 8

C.F.R. § 1245.10(i). Matters of Jara Riero and Jara Espinol, 24

I&N Dec. 267 (BIA 2007).
page 211 of 365

(2) The regulations provide that “[a]n alien who was substituted for

the previous beneficiary of the application for the labor

certification after April 30, 2001, will not be considered to be a

grandfathered alien.” 8 C.F.R. § 1245.10(j). 

h. An alien whose application for adjustment pursuant to the Chinese

Student Protection Act of 1992 was denied as a result of the alien’s entry

without inspection may not amend or renew the application in

immigration proceedings in conjunction with section 245(i) of the INA. 

Matter of Wang, 23 I&N Dec. 924 (BIA 2006).

i. The Board ruled that aliens who are inadmissible under section

212(a)(9)(C)(i)(I) (aliens who have “been unlawfully present in the

United States for an aggregate period of more than 1 year . . . and who

enter or attempt to reenter the United States without being admitted”) are

ineligible for adjustment of status under section 245(i). In doing so, the

Board ruled that the bar on adjustment of status for aliens who are

inadmissible under section 212(a)(9)(C)(i)(I) does not render meaningless

the provision in section 245(i)(1)(A) that an alien is eligible for

adjustment of status even if he or she “entered the United States without

inspection,” as section 212(a)(9)(C)(i)(I) only applies to a small subset

(recidivist offenders) of aliens who enter without inspection. Matter of

Briones, 24 I&N Dec. 355 (BIA 2007). See Matter of Diaz & Lopez, 25

I&N Dec. 188 (BIA 2010) (reaffirming Matter of Briones and holding

that the IJ and the Board are no longer bound by Acosta v. Gonzales, 429

F.3d 550 (9th Cir. 2006) in light of the subsequent issuance of Matter of

Briones and Gonzales v. Department of Homeland Security, 508 F.3d

1227 (9th Cir. 2007)). Several Circuit Courts of Appeal have considered

the issue and accorded Chevron deference to the Board’s decision in

Matter of Briones. See Padilla-Caldera v. Holder, 637 F.3d 1140 (10th

Cir. 2011); Mora v. Mukasey, 550 F.3d 231 (2d Cir. 2008); RamirezCanales v. Mukasey, 517 F.3d 904 (6th Cir. 2008); Ramirez v. Holder,

609 F.3d 331 (4th Cir. 2010); Garfias-Rodriguez v. Holder, 649 F.3d 942

(9th Cir. 2011) (holding that the BIA’s ruling that aliens who were

inadmissible due to reentry after accruing more than one year of unlawful

presence could not apply for adjustment of status was not an

implementation of new policy or exercise of regulatory authority to adopt

new rule, but rather was an interpretation of a statute, and thus applied

retroactively, even though the Board's interpretation overrode prior

judicial precedent). 

j. The Seventh Circuit reversed the IJ’s and the Board’s holding that aliens

who are inadmissible under section 212(a)(9)(B)(i)(II) (for having

accrued more than one year of unlawful presence) are ineligible for

adjustment of status under section 245(i). Lemus-Losa v. Holder, 576

F.3d 752 (7th Cir. 2009) (asserting that the Board erred in equating the

inadmissibility of someone under section 212(a)(9)(C)(i)(I) with the
page 212 of 365

inadmissibility of someone under section 212(a)(9)(B)(i)(II)). The Tenth

Circuit, however, found that the Board’s interpretation of sections 245(i)

and 212(a)(9)(B)(i)(II) in Matter of Lemus-Losa, 24 I&N Dec. 373 (BIA

2007) was permissible. Herrera-Castillo v. Holder, 573 F.3d 1004 (10th

Cir. 2009). The Tenth Circuit held that aliens who are inadmissible under

section 212(a)(9)(B)(i)(II) are ineligible for adjustment of status under

section 245(i).

6. Deportable LPRs may adjust status. A lawful permanent resident who becomes

deportable (usually due to a criminal conviction or for having been

inadmissible at entry) is not precluded from establishing eligibility for

adjustment of status by the fact that he already is an LPR. Tibke v. INS, 335

F.2d 42 (2d Cir. 1964); Matter of Krastman, 11 I&N Dec. 720 (BIA 1966).

a. Any respondent seeking to adjust status must be the beneficiary of an

approved visa petition. See 8 C.F.R. § 1245.2(a)(2)(B). An LPR

applying for adjustment of status probably has been the beneficiary of an

approved visa petition in order to obtain status as an LPR. However, it is

necessary for a new visa petition to be filed in his behalf and approved

before he may adjust status for the original visa petition ceased to convey

a priority date or visa classification once the respondent/beneficiary used

it to obtain LPR status. See 8 C.F.R. § 1245.1(g)(2).

b. If the LPR respondent is deportable because he was inadmissible at the

time of entry, he may have to apply for a waiver of the ground of

inadmissibility which existed at entry.

c. If the LPR respondent is deportable because of a criminal conviction for a

CIMT, he will have to qualify for a 212(h) waiver in order to be eligible

for adjustment of status.

d. If the LPR respondent is deportable because of a criminal conviction for a

drug offense, he may be ineligible to adjust status because there is no

waiver available to an immigrant for a drug conviction other than simple

possession of 30 grams or less of marijuana.

7. Miscellaneous cases on adjustment of status.

a. There is no authority to grant adjustment of status under section 245 on a

retroactive or nunc pro tunc basis. Matter of Hernandez-Puente, 20 I&N

Dec. 335 (BIA 1991). Since an alien is assimilated to the position of an

applicant for entry when applying for adjustment of status, he must be

eligible, at the time his application is acted on, for the preference category

relied on when the application was filed. Id. Although the Attorney

General has discretion to admit applicants, he has no authority to act

retroactively on an application. Id. Matter of Hernandez-Puente is

limited to those aliens adjusted under section 245 of the Act as the
page 213 of 365

beneficiary of an approved visa petition. There are certain categories of

applicants, such as refugees and those seeking adjustment as a

Cuban/Haitian applicant, whose status as an LPR is acquired retroactively

to a certain date fixed by the statute or the regulations. This is called a

“roll-back” date.

b. An application for adjustment of status cannot be based on an approved

visa petition that the applicant has already used to adjust his status to that

of a lawful permanent resident. Matter of Villarreal-Zuniga, 23 I&N Dec.

886 (BIA 2006); 8 C.F.R. § 204.2(h)(2).

c. While a court order remains the preferred method of establishing the

dissolution of a customary tribal marriage under Ghanaian law, affidavits

executed by the heads of household, i.e., the fathers of the couple, that

meet specified evidentiary requirements may be sufficient to establish a

divorce for immigration purposes. Matter of Kodwo, 24 I&N Dec. 479

(BIA 2008).

d. The Third Circuit has held that section 246(a) of the Act acts as a fiveyear statute of limitations proscribing untimely rescission of an alien’s

adjustment of status to permanent resident through the initiation of

deportation or removal proceedings. Bamidele v. INS, 99 F.3d 557 (3d

Cir. 1996); Garcia v. Att’y Gen., 553 F.3d 724 (3d Cir. 2009).

(1) The Board has found that the five year statute of limitations in

Garcia does not apply to rescission of LPR status for aliens admitted

with an immigrant visa. Matter of Cruz de Ortiz, 25 I&N Dec. 601

(BIA 2011). The Third Circuit subsequently held that the five year

statute of limitations on rescission of LPR status does not apply to

aliens admitted as LPRs through the consular process. Malik v.

Att’y Gen., --- F.3d ----, No. 08-3874, 2011 WL 4552466 (3d Cir.

Sept. 23, 2011).

L. Waivers

1. A respondent cannot “bootstrap” eligibility from one waiver to the another

where he or she is not separately eligible for either. Matter of Roman, 19 I&N

Dec. 855 (BIA 1988).

2. A waiver for inadmissible refugees. Section 207(c)(3) provides that certain

grounds of inadmissibility are not applicable to aliens seeking admission to the

U.S. as refugees and allows the Attorney General to waive certain other

grounds of inadmissibility.

a. Under section 207(c)(3), the following grounds of inadmissibility are not

applicable to aliens seeking admission as refugees:
page 214 of 365

(1) Section 212(a)(4) - aliens likely to become a public charge;

(2) Section 212(a)(5) - aliens not in possession of a labor certification;

(3) Section 212(a)(7)(A) - immigrants not in possession of a valid,

unexpired immigrant visa or other entry document.

b. Section 207(c)(3) allows the Attorney General to waive all other grounds

of inadmissibility EXCEPT the following:

(1) Section 212(a)(2)(C) - aliens believed to be traffickers in controlled

substances;

(2) Section 212(a)(3)(A) - aliens seeking to enter to perform activities

which threaten the security of the U.S.;

(3) Section 212(a)(3)(B) - aliens engaged in terrorist activities;

(4) Section 212(a)(3)(C) - aliens inadmissible for their effect on the

foreign policy of the U.S.;

(5) Section 212(a)(3)(E) - aliens who participated in persecution by the

Nazis.

c. Under section 207(c)(3), the grant of a waiver should be made:

(1) for humanitarian purposes,

(2) to assure family unity, or

(3) when it is otherwise in the public interest.

3. A waiver of passport, immigrant visa, or other entry documents for returning

residents. Section 211(b) provides that, notwithstanding section 212(a)(7)(A),

returning resident immigrants, defined in section 101(a)(27)(A), may be

readmitted to the U.S. in the Attorney General’s discretion without being

required to obtain a passport, immigrant visa, reentry permit, or other

documentation.

a. Section 101(a)(27)(A) defines the term “special immigrant.” Included in

that definition at 101(a)(27)(A) is “an immigrant, lawfully admitted for

permanent residence, who is returning from a temporary visit abroad.”

b. This waiver is discussed at 8 C.F.R. § 1211.4.
page 215 of 365

c. Some of the cases discussing this waiver as well as the meaning of

“temporary visit” are as follows:

(1) Matter of G-, 8 I&N Dec. 249 (BIA 1959);

(2) Matter of Salviejo, 13 I&N Dec. 557 (BIA 1970);

(3) Matter of Castro, 14 I&N Dec. 492 (BIA 1973), aff’d CastroGuerrero v. INS, 515 F.2d 615 (5th Cir. 1975);

(4) Matter of Quijencio, 15 I&N Dec. 95 (BIA 1974);

(5) Matter of Martinez, 15 I&N Dec. 230 (BIA 1975);

(6) Matter of Kane, 15 I&N Dec. 258 (BIA 1975);

(7) Matter of Huang, 19 I&N Dec. 749 (BIA 1988);

(8) Matter of Abdoulin, 17 I&N Dec. 458 (BIA 1980).

4. Permission to reapply after deportation, exclusion or removal - 8 C.F.R.

§ 1212.2.

a. An IJ does not have authority to grant advance permission to reapply.

Matter of Vrettakos, 14 I&N Dec. 593 (BIA 1974).

b. An IJ does have authority to grant nunc pro tunc permission to reapply,

but only where the grant of the application will conclude the proceedings,

i.e.:

(1) where the only ground of inadmissibility would be eliminated, or

(2) where the alien would receive a grant of adjustment of status in

conjunction with any other waivers of inadmissibility.

c. The cases supporting these propositions are:

(1) Matter of Vrettakos, 14 I&N Dec. 593 (BIA 1973 & 1974);

(2) Matter of Ducret, 15 I&N Dec. 620 (BIA 1976);

(3) Matter of Martinez, 15 I&N Dec. 563 (BIA 1976);

(4) Matter of Ng, 17 I&N Dec. 63 (BIA 1979); 

(5) Matter of Roman, 19 I&N Dec. 855 (BIA 1988).
page 216 of 365

5. A waiver for nonimmigrants coming to provide information about criminal

activity. Section 212(d)(1) provides that the Attorney General, in the exercise

of discretion, may waive any ground of inadmissibility (other than section

212(a)(3)(E) [aliens involved in Nazi persecutions]) in the case of a

nonimmigrant described in section 101(a)(15)(S), if the Attorney General

considers it to be in the national interest to do so.

a. Section 212(d)(1) also provides that it does not prohibit the INS from

instituting removal proceedings against an “S” nonimmigrant for conduct

committed after the alien's admission or for conduct or a condition that

was not disclosed to the Attorney General.

b. This waiver is also discussed in the regulations at 8 C.F.R. § 1212.4(i).

6. A general waiver for nonimmigrants. Section 212(d)(3) provides that an

inadmissible nonimmigrant may be issued a visa and/or admitted temporarily in

the Attorney General’s discretion.

a. Section 212(d)(3) has 2 parts. Part (A) is applicable to aliens applying for

a nonimmigrant visa before a consular officer. Part (B) is applicable to

aliens applying for admission.

b. Under both parts, the following grounds of inadmissibility may not be

waived:

(1) 212(a)(3)(A)(i)(I) - espionage or sabotage;

(2) 212(a)(3)(A)(ii) - any unlawful activity;

(3) 212(a)(3)(A)(iii) - overthrow of U.S. government;

(4) 212(a)(3)(C) - adverse effect on foreign policy;

(5) 212(a)(3)(E) - Nazi persecutors.

c. Under Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), a decision on a

212(d)(3) waiver requires a weighing of at least 3 factors:

(1) the risk of harm to society if the alien is admitted;

(2) the seriousness of the alien's immigration or criminal violations, if

any; and

(3) the nature of the alien's reasons for wishing to enter the U.S.

d. A waiver under section 212(d)(3) could be granted in exclusion

proceedings, but was unavailable nunc pro tunc in deportation
page 217 of 365

proceedings because the regulations provided for the renewal of an

application denied by the DD only in proceedings under sections 235 and

236. Matter of Fueyo, 20 I&N Dec. 84 (BIA 1989).

e. Section 212(d)(3) waivers are also discussed at 8 C.F.R. § 1212.4.

7. A waiver of documents for nonimmigrants. Section 212(d)(4) provides that

either or both of the requirements of section 212(a)(7)(B)(i), relating to a

nonimmigrant's lack of passport and/or visa, may be waived by the Attorney

General and the Secretary of State acting jointly:

a. on the basis of unforeseen emergency in individual cases, or

b. on the basis of reciprocity with respect to nationals of foreign contiguous

territory or adjacent islands, or

c. in the case of aliens proceeding in immediate and continuous transit

through the U.S. under contracts authorized in section 238(c).

d. An IJ has authority to grant a 212(d)(4) waiver. Matter of Kazemi, 19

I&N Dec. 49 (BIA 1984), overruling Matter of Ketema, 18 I&N Dec. 266

(BIA 1982).

8. A waiver of alien smuggling - Section 212(d)(11).

a. History lesson - Former section 212 (a) (31) of the Act, which dealt with

the inadmissibility of alien smugglers, required that the smuggling had to

be “for gain” in order to render an alien excludable. The Immigration Act

of 1990 eliminated the element of gain. It also created a discretionary

waiver under section 212 (d)(11) of the Act for LPRs who attempted to

smuggle their spouse, parent, son, or daughter. Section 307 (d) of the

Miscellaneous and Technical Immigration and Naturalization

Amendments of 1991 amended section 212(d)(11) to make its provisions

available to aliens seeking admission or adjustment of status as

immediate relatives or immigrants under section 203(a) of the Act

(family-sponsored immigrants).

b. Section 212(d)(11) of the Act authorizes the Attorney General to waive

section 212(a)(6)(E)(i) relating to alien smuggling.

(1) A section 212(d)(11) waiver is available only to:

(a) a LPR who temporarily proceeded abroad voluntarily and not

under an order of deportation or an alien applying for

admission or adjustment of status as an immediate relative or

family-sponsored immigrant under section 203 (a) of the Act;
page 218 of 365

(b) who is otherwise admissible as a returning resident under

section 211(b) of the Act;

(c) who smuggled only an individual who at the time of the

smuggling was his spouse, parent, son, or daughter.

i) The requirement of “at the time of” was added to the Act

by section 351 of the IIRIRA, apparently to overrule the

decision in Matter of Farias-Mendeza, 21 I&N Dec. 269

(BIA 1996), in which the Board held that the familial

relationship did not have to exist at the time of the

smuggling incident as long as it existed at the time of the

application for relief.

(2) The only other requirements are as follows:

(a) The alien must merit a favorable exercise of discretion, and

(b) The Attorney General’s waiver must be for humanitarian

purposes, to assure family unity, or when it is otherwise in the

public interest.

(3) Section 212(d)(11) of the Act does not create two separate classes

of aliens with separate requirements for eligibility. Both an LPR

alien returning from a temporary trip abroad and an alien seeking

admission or adjustment of status as an immediate relative or

family-sponsored immigrant must show that the object of the alien's

smuggling attempt was the alien's spouse, parent, son, or daughter. 

Matter of Compean-Guevara, 21 I&N Dec. 51 (BIA 1995).

9. Waiver for document fraud - Section 212(d)(12).

a. History lesson - Section 274C, which imposes civil penalties for

document fraud, was added to the Act by section 544(c) of the

Immigration Act of 1990. When section 212(a)(6)(F), which makes

inadmissible any alien subject to a final order under section 274C, was

added, there was no waiver provided in the statute. In Matter of LazarteValverde, 21 I&N Dec. 214 (BIA 1996), the Board held that there is no

waiver for section 212(a)(6)(F) and that a 212(i) fraud waiver is not

applicable to waive that ground of inadmissibility. The IIRIRA added

section 212(d)(12) to the Act to provide a waiver.

b. Aliens who are eligible.

(1) An LPR who proceeded abroad voluntarily and not under an order

of deportation or removal and who is otherwise admissible to the

U.S. as a returning resident under section 211(b), or
page 219 of 365

(2) An alien seeking admission or adjustment of status under section

201(b)(2)(A) [immediate relative] or section 203(a) [family

sponsored immigrants].

c. Substantive law.

(1) Section 212(d)(12) provides that the Attorney General may waive a

finding of inadmissibility under section 212(a)(6)(F)(i) if:

(a) no previous civil money penalty was imposed against the alien

under section 274C and

(b) the offense was committed solely to assist, aid, or support the

alien's spouse or child (and not another individual).

(2) The only other requirements are that:

(a) The alien must merit a favorable exercise of discretion, and

(b) The Attorney General’s waiver must be for humanitarian

purposes or to assure family unity.

10. A waiver of the 2-year foreign residence requirement imposed on exchange

nonimmigrants under section 101(a)(15)(J). A section 212(e) waiver may be

granted only by a District Director (with favorable recommendation by the

Director of USIA). Therefore, an IJ has no authority to grant a 212(e) waiver

or to overrule a denial of a waiver by the District Director. Matter of

Rosenblatt, 10 I&N Dec. 154 (BIA 1963); Matter of Irie, 10 I&N Dec. 372

(BIA 1963); Matter of Han, 10 I&N Dec. 53 (BIA 1962).

a. However, an IJ may decide whether an alien is subject to the foreign

residence requirement of section 212(e). Matter of Baterina, 16 I&N Dec.

127 (BIA 1977).

b. An alien who acquired J-1 status through fraud and who never

participated in the exchange program is still subject to the foreign

residence requirement. Matter of Park, 15 I&N Dec. 436 (BIA 1975).

11. A waiver of inadmissibility for disease, mental illness, etc., under section

212(a)(1)(A). Section 212(g) contains 3 waivers:

a. Section 212(g)(1) allows the Attorney General to waive inadmissibility

under section 212(a)(1)(A)(i) [alien determined to have a communicable

disease of public health significance] in the case of an alien who is:
page 220 of 365

(1) the spouse of, the unmarried son or daughter of, the minor

unmarried lawfully adopted child of, or who has a son or daughter

who is a USC, an LPR, or an alien who has been issued an

immigrant visa;

b. Section 212(g)(2) allows the Attorney General to waive inadmissibility

under section 212(a)(1)(A)(ii) [alien not presenting documentation of

vaccinations] in the case of any alien:

(1) who receives vaccination against the disease(s) for which the alien

has failed to present documentation of previous vaccination, or

(2) for which a civil surgeon, medical officer, or panel physician (as

defined in 42 C.F.R. § 34.2) certifies that such vaccination would

not be medically appropriate, or

(3) under such circumstances as the Attorney General provides by

regulation, with respect to whom the requirement of such a

vaccination would be contrary to the alien's religious beliefs or

moral convictions.

c. Section 212(g)(3) allows the Attorney General to waive inadmissibility

under section 212(a)(1)(A)(iii) [involving aliens determined to have a

physical or mental disorder] in the case of any alien with such terms,

conditions, and controls, including giving bond, as the Attorney General

(after consultation with the Secretary of Health & Human Services) may

prescribe by regulation.

d. These waivers are also discussed in 8 C.F.R. § 1212.7(b).

12. A waiver of criminal activity - Section 212(h).

a. History lesson - Before amendment by the Immigration Act of 1990, the

waiver under section 212(h) was available to immigrants who were the

spouse, parent, son, or daughter of a USC or LPR who could establish

that his exclusion (or deportation) would result in extreme hardship to the

USC or LPR relative. The amendment did away with the extreme

hardship requirement, but made the waiver available only to immigrants

whose excludable activities occurred more than 15 years before

application. This amendment was highly criticized, so in the Immigration

Technical Corrections Act of 1991, Congress restored the waiver's

availability upon a showing of extreme hardship as an alternative to the

15 year requirement.

(1) Before it was amended by the Immigration Act of 1990, section

212(h) contained a requirement that the immigrant be “otherwise

admissible,” i.e. not excludable on any other ground than one which
page 221 of 365

212(h) may waive. This requirement was removed by amendment

and has not been restored.

b. Section 212(h) provides that the Attorney General may waive the

following grounds of inadmissibility:

(1) 212(a)(2)(A)(i)(I) - aliens convicted of or admitting the commission

of a CIMT;

(2) 212(a)(2)(B) - aliens convicted of 2 or more offenses (other than

purely political) with an aggregate sentence of 5 years;

(3) 212(a)(2)(D) - aliens involved in prostitution or commercialized

vice;

(4) 212(a)(2)(E) - aliens involved in serious criminal activity who have

asserted immunity from prosecution;

(5) 212(a)(2)(A)(i)(II) - aliens convicted of or admitting drug offenses

as that section relates to a single offense of simple possession of 30

grams or less of marijuana.

(a) The Board ruled that this exception is not available where the

alien was convicted under a statute containing, as an element,

a requirement that the possession occur in a prison or other

correctional setting. Matter of Moncada-Servellon, 24 I&N

Dec. 62 (BIA 2007).

(b) In Matter of Martinez-Zapata, the Board ruled that this

exception is not available where the respondent’s conviction

was enhanced by virtue of the possession of marijuana

occurring in a “drug-free zone,” where the enhancement factor

increased the maximum penalty for the underlying offense and

had to be proved beyond a reasonable doubt to a jury. The

Board further ruled that any fact (including a fact contained in

a sentence enhancement) that serves to increase the maximum

penalty for a crime and that is required to be found by a jury

beyond a reasonable doubt, if not admitted by the defendant, is

to be treated as an element of the underlying offense, so that a

conviction involving the application of such an enhancement

is a conviction for the enhanced offense. Matter of MartinezZapata, 24 I&N Dec. 424 (BIA 2007).

(c) In Matter of Martinez Espinoza, 25 I&N Dec. 118, 125 (BIA

2009), the Board held that an alien who is inadmissible under

section 212(a)(2)(A)(i)(II) of the Act may apply for a 212(h)

waiver if he demonstrates by a preponderance of the evidence
page 222 of 365

that the conduct that made him inadmissible was either a

single offense of simple possession of 30 grams or less of

marijuana or an act that related to such an offense.

c. Aliens who are ineligible.

(1) Section 212(h)(2) provides that no waiver shall be provided in the

case of an alien who has been convicted of (or who has admitted

acts that constitute) murder or criminal acts involving torture or an

attempt or conspiracy to commit murder or a criminal act involving

torture.

(2) Section 348 of IIRIRA amended section 212(h)(2) to provide: “No

waiver shall be granted under this subsection in the case of an alien

who has previously been admitted to the United States as an alien

lawfully admitted for permanent residence if either since the date of

such admission the alien has been convicted of an aggravated felony

or the alien has not lawfully resided continuously in the United

States for a period of not less than 7 years immediately preceding

the date of initiation of proceedings to remove the alien from the

United States.” This amendment was discussed by the Board in

Matter of Yeung, 21 I&N Dec. 610 (BIA 1997).

(a) An alien who has not previously been admitted to the U.S. as

an alien lawfully admitted for permanent residence is

statutorily eligible for a 212(h) waiver despite his conviction

for an aggravated felony. Matter of Michel, 21 I&N Dec. 1101

(BIA 1998).

(b) The Board held that an alien who entered the United States

without inspection and later obtained lawful permanent

resident status through adjustment of status has “previously

been admitted to the United States as an alien lawfully

admitted for permanent residence” and must therefore satisfy

the 7-year continuous residence requirement of section 212(h)

to be eligible for a waiver of inadmissibility. Matter of

Koljenovic, 25 I&N Dec. 219 (BIA 2010); but see Lanier v.

Att’y Gen.,631 F.3d 1363 (11th Cir. 2011)(finding no

ambiguity in the statutory text and declining to defer to the

Board’s interpretation of section 212(h), the Eleventh Circuit

found that the provision barring persons who have been

convicted of an aggravated felony from seeking 212(h) relief

does not apply to someone who adjusted to LPR status while

living in the United States). 

(c) Section 348(b) of the IIRIRA provides that the amendments to

section 212(h) apply to aliens in exclusion or deportation
page 223 of 365

proceedings as of September 30, 1996, unless a final order of

deportation has been entered as of such date. This precluded

the applicability of the new restrictions to an administratively

final grant of a 212(h) waiver. However, an alien convicted of

an aggravated felony who had a final administrative order of

deportation as of September 30, 1996, would be subject to the

restrictions on eligibility for a 212(h) waiver if his proceedings

were thereafter reopened and the case returned to the status of

a pending proceeding. Therefore, his motion to reopen

deportation proceedings to apply for adjustment of status in

conjunction with a 212(h) waiver was properly denied. Matter

of Pineda, 21 I&N Dec. 1017 (BIA 1997).

(d) The lawfulness of the alien’s status as a LPR is not relevant. 

Therefore, an alien who has previously been admitted as a

LPR but later claims that such admission was not lawful

because he concealed criminal activities from the INS cannot

qualify for a 212(h) waiver if he has not resided continuously

in the U.S. for 7 years or has been convicted of an aggravated

felony. Matter of Ayala, 22 I&N Dec. 398 (BIA 1998).

(e) A returning LPR seeking to overcome a ground of

inadmissibility is not required to apply for adjustment of status

in conjunction with a waiver under section 212(h) of the Act. 

Matter of Abosi, 24 I&N Dec. 204 (BIA 2007). 

(f) The Board has ruled that a respondent did not “lawfully

reside” in the U.S., for purposes of eligibility for a waiver

under section 212(h) of inadmissibility for certain criminal

convictions, “during those periods in which he was an

applicant for asylum or for adjustment of status and lacked any

other basis for claiming lawful residence.” Matter of Rotimi,

24 I&N Dec. 567 (BIA 2008). See also Vila v. Att’y Gen., 598

F.3d 1255 (11th Cir. 2010); Rotimi v. Holder, 577 F.3d 133

(2d Cir. 2009). 

d. Substantive requirements. A section 212(h) waiver is available to 2

classes of immigrants: those related to a USC or LPR and all other

immigrants. Matter of Alarcon, 20 I&N Dec. 557 (BIA 1992).

(1) Immigrants who are the spouse, parent, son, or daughter of a USC

or LPR must establish the following:

(a) That the alien's exclusion would result in extreme hardship to

the alien's USC or LPR spouse, parent, son, or daughter;
page 224 of 365

i) In interpreting the pre-amendment version of section

212(h), the Board held that the hardship to the alien

himself may not be considered. Matter of Shaughnessy,

12 I&N Dec. 810 (BIA 1968). 

ii) In the same case, the Board held that the term “extreme

hardship” encompasses both present and future hardship.

iii) By use of the term “extreme hardship,” Congress

intended a showing of more than the mere hardship

caused by family separation. Matter of W-, 9 I&N Dec.

1 (BIA 1960).

iv) Only in cases of great actual or prospective injury to a

qualifying party will a waiver be granted. Matter of

Ngai, 19 I&N Dec. 245 (Comm. 1984).

v) In Osuchukwu v. INS, 744 F.2d 1136 (5th Cir. 1984),

the 5th Circuit strongly implied that the “extreme

hardship” to be demonstrated in a 212(h) case is the

same as the “extreme hardship” required in suspension

of deportation cases under former section 244(a).

(b) That the alien merits a favorable exercise of discretion;

i) In interpreting the pre-amendment version of section

212(h), the Board held that when an alien has been

convicted of serious crimes, there should be a reasonable

showing of rehabilitation before there can be a finding

that his admission would not be contrary to the national

welfare, safety, or security of the U.S. Matter of

Shaughnessy, 12 I&N Dec. 810 (BIA 1968). Neither the

“welfare, safety, or security” requirement or the

“rehabilitation” requirement of amended section 212(h)

is applicable to an immigrant seeking the waiver on the

basis of his relationship to a USC or LPR. A discussion

of the Board’s view on the subject since amendment is

set forth below.

ii) Establishing extreme hardship and eligibility for section

212(h)(1)(B) relief does not create any entitlement to

that relief. Extreme hardship is a requirement for

eligibility, but once established it is but one favorable

discretionary factor to be considered. Matter of Mendez,

21 I&N Dec. 296 (BIA 1996). In assessing whether an

applicant has met his burden that he merits a favorable

exercise of discretion, the IJ must balance the adverse
page 225 of 365

factors of record evidencing an alien's undesirability as a

permanent resident with the social and humane

considerations presented in his behalf to determine

whether the grant of relief in the exercise of discretion is

in the best interest of this country. Id. The factors

adverse to the applicant include the nature and

underlying circumstances of the exclusion ground at

issue, the presence of additional significant violations of

this country's immigration laws, the existence of a

criminal record and, if so, its nature, recency,

seriousness, and the presence of other evidence

indicative of a respondent's bad character or

undesirability as a permanent resident of this country. 

Id. The favorable considerations include family ties in

the United States, residence of long duration in this

country (particularly where the alien began his residency

at a young age), evidence of hardship to the alien and his

family if he is excluded and deported, service in this

country's Armed Forces, a history of stable employment,

the existence of property or business ties, evidence of

value and service to the community, evidence of genuine

rehabilitation if a criminal record exists, and other

evidence attesting to a respondent's good character (such

as affidavits from family, friends, and responsible

community representatives). Id. The equities that an

applicant for section 212(h)(1)(B) relief must bring

forward to establish that he merits a favorable exercise

of discretion will depend in each case on the nature and

circumstances of the ground of exclusion sought to be

waived and on the presence of any additional adverse

factors. As the negative factors grow more serious, it

becomes incumbent upon the applicant to introduce

additional offsetting favorable evidence.

iii) The underlying significance of the adverse and favorable

factors is also to be taken into account.

a) If the alien has relatives in the U.S., the quality of

their relationship must be considered in

determining the weight to be awarded this equity.

b) The equity of a marriage and the weight given to

any hardship to the spouse is diminished if the

parties married after the commencement of

deportation proceedings, with knowledge that the

alien might be deported.
page 226 of 365

c) If the alien has a history of employment, it is

important to consider the type of employment and

its length and stability.

d) When looking at the length of the alien's presence

in the U.S., the nature of his presence during this

period must be evaluated. For example, a period of

residency marked by a term of imprisonment

diminishes the significance of the period of

residency.

iv) While the IJ may not go behind the record of conviction

to determine the guilt or innocence of the alien, it is

proper to look to probative evidence outside the record

of conviction in inquiring as to the circumstances

surrounding the commission of the crime in order to

determine whether a favorable exercise of discretion is

warranted. Matter of Mendez, 21 I&N Dec. 296, 303 n.1

(BIA 1996). Taking responsibility and showing remorse

for one’s criminal behavior does constitute some

evidence of rehabilitation, although an alien who claims

innocence and does not express remorse is not precluded

from ever presenting persuasive evidence of

rehabilitation by other means. Id. While the lack of

persuasive evidence of rehabilitation may not in itself be

an adverse factor, the absence of this equity in the alien's

favor may ultimately be determinative in a given case

concerning the exercise of discretion under section

212(h)(1)(B) of the Act, particularly where an alien has

engaged in serious misconduct and there are questions

whether the alien will revert to criminal behavior. Id.

Conversely, evidence of rehabilitation in some cases

may constitute the factor that raises the significance of

the alien's equities in total so as to be sufficient to

counterbalance the adverse factors in the case and

warrant a favorable exercise of discretion. Id.

v) As of December 19, 2002, 8 C.F.R. § 212.7 [now 8

C.F.R. § 1212.7(d)] was added which provides as

follows: “The Attorney General, in general, will not

favorably exercise discretion under section 212(h)(2) of

the Act to consent to an application or reapplication for a

visa, or admission to the United States, or adjustment of

status, with respect to immigrant aliens who are

inadmissible under section 212(a)(2) of the Act in cases

involving violent or dangerous crimes, except in

extraordinary circumstances, such as those involving
page 227 of 365

national security or foreign policy considerations, or

cases in which an alien clearly demonstrates that the

denial of the application for adjustment of status or an

immigrant visa or admission as an immigrant would

result in exceptional or extremely unusual hardship. 

Moreover, depending on the gravity of the alien’s

criminal offense, a showing of extraordinary

circumstances might still be insufficient to warrant a

favorable exercise of discretion under section 212(h)(2)

of the Act.”

(2) Immigrants not having the requisite relationship to a USC or LPR

must establish the following:

(a) That the alien is inadmissible only under sections

212(a)(2)(D)(i) or (ii) [all grounds involving prostitution,

except coming to the U.S. to engage in any other

commercialized vice as described in section 212(a)(2)(D)(iii)]

or that the activities for which the alien is inadmissible

occurred more than 15 years before the date of application;

(b) The alien must also establish that his admission to the U.S.

would not be contrary to the national welfare, safety, or

security of the U.S.;

(c) The alien must also establish that he has been rehabilitated;

(d) The alien must also establish that he merits a favorable

exercise of discretion;

i) An application for discretionary relief, including a

waiver under section 212(h), may be denied in the

exercise of discretion without express rulings on the

question of statutory eligibility. INS v. Bagamasbad,

429 U.S. 24 (1976).

13. A waiver of inadmissibility for fraud or misrepresentation. Section 212(i) of

the Act allows the Attorney General to waive section 212(a)(6)(C)(i) relating to

fraud or misrepresentation of a material fact in procuring a visa, admission into

the U.S., or other benefit under the Act.

a. Under section 212(i)(1), the waiver is available to an immigrant who is

the spouse, son, or daughter of a USC or LPR if it is established that the

refusal of admission to the U.S. of the immigrant would result in extreme

hardship to the USC or LPR spouse or parent. Section 212(i)(1) also

requires that the immigrant merit a favorable exercise of discretion.
page 228 of 365

b. Section 212(i) waivers are discussed in 8 C.F.R. § 1212.7.

c. Section 212(i) of the Act is not available to waive inadmissibility under

section 212(a)(6)(F) of the Act which makes inadmissible aliens subject

to a final order under section 274C of the Act involving document fraud. 

Matter of Lazarte, 21 I&N Dec. 214 (BIA 1996).

d. The provisions of section 212(i) of the Act which require that an alien

establish extreme hardship to his or her United States citizen or

permanent resident alien spouse or parent in order to qualify for a waiver

of inadmissibility, are applicable to pending cases. Matter of Cervantes,

22 I&N Dec. 560 (BIA 1999), following Matter of Soriano, 21 I&N Dec.

516 (BIA 1996, A.G. 1997).

e. The factors to be used in determining whether an alien has established

extreme hardship pursuant to section 212(i) of the Act include, but are not

limited to, the following: the presence of lawful permanent resident or

United States citizen family ties to this country; the qualifying relative’s

family ties outside the United States; the conditions in the country or

countries to which the qualifying relative would relocate and the extent of

the qualifying relative’s ties to such countries; the financial impact of

departure from this country; and, finally, significant conditions of health,

particularly when tied to the unavailability of suitable medical care in the

country to which the qualifying relative would relocate. Matter of

Cervantes, 22 I&N Dec. 560 (BIA 1999).

f. The underlying fraud or misrepresentation for which an alien seeks a

waiver of inadmissibility under section 212(i) of the Act may be

considered as an adverse factor in adjudicating the waiver application in

the exercise of discretion. Matter of Cervantes, 22 I&N Dec. 560 (BIA

1999).

14. A waiver of inadmissibility under sections 212(a)(5)(A) [no labor certification]

and 212(a)(7)(A)(i) [no valid entry document]. Section 212(k) provides that

any alien inadmissible under section 212(a)(5)(A) [no labor certification] or

section 212(a)(7)(A)(i) [immigrant not in possession of valid immigrant visa]

who is in possession of an immigrant visa may, if otherwise admissible, be

admitted in the Attorney General’s discretion if the Attorney General is

satisfied that “exclusion was not known to, and could not have been ascertained

by the exercise of reasonable diligence by, the immigrant before the time of

departure of the vessel or aircraft from the last port outside the United States

and outside foreign contiguous territory or, in the case of an immigrant coming

from foreign contiguous territory, before the time of the immigrant's

application for admission.”

a. This waiver is also discussed at 8 C.F.R. § 1212.10.
page 229 of 365

b. The only case in recent years dealing with 212(k) waivers is Matter of

Aurelio, 19 I&N Dec. 458 (BIA 1987).

15. A waiver of inadmissibility as a public charge - Section 213.

a. Immigration judges have jurisdiction to grant a waiver of inadmissibility

under section 213 of the Act and are required to advise an alien found to

be inadmissible as a public charge under section 212(a)(4)(B) of the Act

of his or her right to apply for a waiver. Matter of Ulloa, 22 I&N Dec.

725 (BIA 1999).

b. Section 213 provides that an alien inadmissible under section 212(a)(4)

[likely to become a public charge] may be admitted if:

(1) bond is posted;

(2) alien is otherwise admissible; and 

(3) alien merits a favorable exercise of discretion.

16. A waiver of the requirement to file joint petition for removal of conditions -

Section 216(c)(4).

a. Introduction and in general.

(1) The Act provides two means by which the conditional basis of a

conditional permanent resident's (CPR) status may be removed: (1)

the alien and the citizen spouse may file a joint petition to remove

the conditional basis of the alien's permanent resident status under

section 216(c)(1) of the Act, or (2) the alien may file an application

for a waiver of the requirement to file a joint petition under section

216(c)(4). Matter of Mendes, 20 I&N Dec. 833 (BIA 1994); Matter

of Anderson, 20 I&N Dec. 888 (BIA 1994); Matter of Balsillie, 20

I&N Dec. 486 (BIA 1992).

(2) A conditional permanent resident under section 216(a) who is

seeking to remove the conditional basis of that status and who has

timely filed the petition and appeared for the interview required

under section 216(c)(1), does not need a separate section 216(c)(4)

hardship waiver if the petitioning spouse died during the 2-year

conditional period. Matter of Rose, 25 I&N Dec. 181 (BIA 2010).

(3) When an alien in removal proceedings seeks “review” of the DHS’s

denial of a waiver under section 216 of the Act, of the requirement

to file a joint petition to remove the conditional basis of lawful

permanent resident status, he or she may introduce, and the IJ

should consider, any relevant evidence without regard to whether it
page 230 of 365

was previously submitted or considered in proceedings before the

DHS. Matter of Herrera del Orden, 25 I&N Dec. 589 (BIA 2011).

(4) The 1986 amendment which created CPR status contained the word

“or” between the extreme hardship ground for waiver and the good

faith ground which follows it. A 1990 amendment removed the

word “or,” but added a third ground for waiver available to battered

spouses or children. The third ground is preceded by the word “or.” 

These changes were for the purposes of syntax only and not to

combine the first 2 grounds for a waiver. There are 3 separate

waivers which a CPR may file. Matter of Balsillie, 20 I&N Dec. 486

(BIA 1992).

(a) A CPR who seeks to remove the conditional basis of that

status by means of a waiver under section 216(c)(4) of the Act

should apply for any applicable waiver provided under that

section. Matter of Anderson, 20 I&N Dec. 888 (BIA 1994).

(b) An alien whose application for a specific waiver under section

216(c)(4) of the Act has been denied by the INS may not seek

consideration of an alternative waiver under that section in

deportation proceedings before an IJ. Id.

(c) Where an alien becomes eligible for an additional waiver

under section 216(c)(4) of the Act due to changed

circumstances, the deportation proceedings may be continued

in order to give the alien a reasonable opportunity to submit an

application to the Service. Id.

(d) Inasmuch as the Board only has authority to review a waiver

application after the INS and the IJ have considered it, an alien

may not apply for a waiver under section 216(c)(4) on appeal. 

Id.

(e) In order to preserve an application for relief under section

216(c)(4) of the Act, an alien must request during deportation

proceedings before an IJ a review of the Service's denial of

such application. Matter of Gawaran, 20 I&N Dec. 938 (BIA

1995).

(f) Only circumstances occurring during the period the alien was

admitted for conditional residence will be considered. Matter

of Singh, 24 I&N Dec. 331 (BIA 2007). There is no conflict

between section 216(c)(4) and the implementing regulation at

8 C.F.R. § 1216.5(e)(1) where both provide the same start date

for the circumstances to be considered and only the statute

provides an end date. Id. 
page 231 of 365

b. The extreme hardship waiver. In order to qualify for this waiver, the CPR

must establish that extreme hardship would result if he or she is deported. 

Neither the statute nor the regulations specify to whom the extreme

hardship must result.

(1) The regulations emphasize that hardship results from any

deportation and that the waiver should be granted only in those

cases in which the hardship is extreme. 8 C.F.R. § 1216.5(e)(1).

(a) In determining extreme hardship, only circumstances

occurring after the alien acquired CPR status may be

considered. INA § 216(c)(4); 8 C.F.R. § 1216.5(e)(1).

c. The “good faith” waiver. In order to qualify for this waiver, the alien

must establish that he/she entered into the qualifying marriage in good

faith, but the qualifying marriage was terminated (other than by death of a

spouse) and the alien was not at fault in failing to meet the petition and

interview requirements.

(1) The 1986 amendment which created CPR status contained the

requirement that the qualifying marriage had to be terminated “by

the alien spouse for good cause.” This led to some inequitable

situations in which aliens who had entered into the qualifying

marriage in good faith and were not at fault in failing to meet the

requirements of petition and interview were ineligible for a waiver

because their spouse had been the plaintiff in the divorce. A 1990

amendment to the Act removed the requirement that the marriage be

terminated by the alien spouse. The amendment removing this

requirement is applicable to marriages entered into before, on, or

after the effective date of the amendment (Nov. 29, 1990). 

Therefore, the amendment is considered to be retroactive.

d. The battered spouse or child waiver. In order to qualify for this waiver, it

must be shown that the alien entered into the qualifying marriage in good

faith, was battered by or the subject of extreme cruelty by his or her

spouse or parent, and was not at fault in failing to meet the petition and

interview requirements. INA § 216(c)(4)(C).

(1) The battered spouse or child ground for waiver was added by a 1990

amendment applicable to marriages entered into before, on, or after

the effective date of the amendment (Nov. 29, 1990). Therefore, the

amendment is considered to be retroactive.

17. A waiver of fraud in removal proceedings. Section 237(a)(1)(H) provides that

an alien subject to removal as inadmissible at the time of application for

admission under section 212(a)(6)(C)(i) because of either willful or innocent
page 232 of 365

fraud or misrepresentation of a material fact in obtaining a visa, entry, or other

benefit may be granted a waiver of the fraud or misrepresentation and any

ground of inadmissibility at time of application for admission which resulted

from the fraud or misrepresentation.

a. In order to qualify for the waiver, the respondent must demonstrate the

following:

(1) The respondent must be the spouse, parent, son or daughter of a

USC or LPR;

(a) The Board has ruled that, for an alien to qualify for a waiver of

inadmissibility under section 237(a)(1)(H)(i), the alien’s

qualifying relative must be living. The Board rejected the

respondent's argument that he qualified for a waiver of

inadmissibility under section 237(a)(1)(H)(i) based on his

deceased U.S.-citizen mother. Matter of Federiso, 24 I&N

Dec. 661 (BIA 2008). The Ninth Circuit overruled the

Board’s decision in Matter of Federiso, and held that an

individual whose United States citizen parent has died remains

the son of a U.S. citizen and is therefore eligible for a waiver

of removal under section 237(a)(1)(H). Federiso v. Holder,

605 F.3d 695 (9th Cir. 2010).

(2) The respondent must have been in possession of an immigrant visa

at the time of entry;

(3) The respondent must have been otherwise admissible at the time of

entry except for sections 212(a)(5)(A) [no labor certification] and

212(a)(7)(A) [no valid, unexpired immigrant visa] which were a

direct result of the fraud or misrepresentation;

(4) The respondent must merit a favorable exercise of discretion.

b. Section 237(a)(1)(H) provides that “a waiver of deportation for fraud or

misrepresentation granted under this subparagraph shall also operate to

waive deportation based on the grounds of inadmissibility directly

resulting from such fraud or misrepresentation.” 

(1) Section 237(a)(1)(H) authorizes a waiver of removability under

section 237(a)(1)(A) based on charges of inadmissibility at the time

of admission under section 212(a)(7)(A)(i)(I), for lack of a valid

immigrant visa or entry document, as well as under section

212(a)(6)(C)(i) for fraud or willful misrepresentation of a material

fact, where there was a misrepresentation made at the time of

admission, whether innocent or not. Matter of Fu, 23 I&N Dec. 985

(BIA 2006).
page 233 of 365

(2) An alien who is charged with removability under sections

237(a)(1)(A) and (D), based upon a determination of marriage

fraud, is eligible for a waiver under section 237(a)(1)(H) of the Act

to waive both charges because the charges are predicated on the

same event – the entry into the United States through a fraudulent

marriage. Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010). 

c. Section 237(a)(1)(H) states that its waiver is unavailable to any alien

described in section 241(a)(4)(D) [Nazi persecutors].

d. Former section 241(f)(1) of the Act was held to be unavailable to waive

an alien’s deportability under former section 241(a)(9)(B) of the Act (an

alien with LPR status on a conditional basis whose status on a conditional

basis is terminated) because termination of the alien’s conditional

permanent resident status constitutes a basis for deportability which is

separate and distinct from the charge that the alien is “excludable at the

time of entry” within the meaning of former section 241(f)(1). Matter of

Gawaran, 20 I&N Dec. 938 (BIA 1995). Section 237(a)(1)(H) appears

subject to the same interpretation.

e. Former section 241(f) was held to waive grounds of excludability existing

only at the time of an alien's entry to the U.S. and was unavailable to

waive frauds committed while adjusting status because an adjustment was

not an “entry.” Matter of Connelly, 19 I&N Dec. 156 (BIA 1984).

f. Former section 241(f) was held to be available only in deportation

proceedings and not in rescission proceedings. Matter of Pereira, 19 I&N

Dec. 169 (BIA 1984).

g. In making the discretionary determination on a waiver of deportability

pursuant to former section 241(a)(1)(H) of the Act, an IJ should consider

the alien’s initial fraud or misrepresentation in the overall assessment of

positive and negative factors. Matter of Tijam, 22 I&N Dec. 408 (BIA

1998). In that decision, the Board specifically declined to follow the

policy set forth by the Commissioner of the Immigration and

Naturalization Service in Matter of Alonzo, 17 I&N Dec. 292 (Comm.

1979), that the underlying fraud or misrepresentation for which the alien

seeks a waiver should be disregarded.

18. A waiver of passport and visa for certain nonimmigrant visitors seeking

admission to Guam - Section 212(l).

a. This waiver is discussed in the regulations at 8 C.F.R. § 1212.1(e).

M. Nicaraguan Adjustment and Central American Relief Act (NACARA).
page 234 of 365

1. Adjustment of status by nationals of Nicaragua or Cuba. Section 202 of

NACARA provides that the status of an alien shall be adjusted to that of a LPR

if the alien:

a. Is a national of Nicaragua or Cuba who has been physically present in the

U.S. for a continuous period , beginning not later than December 1, 1995

and ending not earlier than the date the application for adjustment is filed. 

NACARA § 202(a)(b)(1).

(1) Section 202(b)(2) of NACARA provides that, for purposes of

establishing that the period of continuous physical presence

commenced not later than December 1, 1995, an alien shall

demonstrate that prior to December 1, 1995, he:

(a) applied to the Attorney General for asylum;

(b) was issued an OSC under former section 242 or 242B of the

Act (as in effect prior to April 1, 1997);

(c) was placed in exclusion proceedings under former section 236

of the Act (as in effect prior to April 1, 1997);

(d) applied for adjustment of status under section 245 of the Act;

(e) performed service, or engaged in a trade or business, within

the U.S. which is evidenced by records maintained by the

Commissioner of Social Security;

(f) applied for any other benefit under the Act by means of an

application establishing the alien’s presence in the U.S. prior

to December 1, 1995; or

(g) shall make such other demonstration of physical presence as

the Attorney General may provide for by regulation.

b. Applies for NACARA adjustment before April 1, 2000;

c. Is otherwise eligible to receive an immigrant visa and is otherwise

admissible to the U. S. for permanent residence;

(1) The following grounds of inadmissibility shall not apply:

(a) Section 212(a)(4) - public charge;

(b) Section 212(a)(5) - labor certification;

(c) Section 212(a)(6)(A) - present without admission or parole;
page 235 of 365

(d) Section 212(a)(7)(A) - not in possession of a valid entry

document.

d. Application in lieu of MTR. Section 202(a)(2) of NACARA provides

that an alien present in the U.S. who has been ordered excluded, deported,

removed, or ordered to depart voluntarily from the U.S. under any

provision of the Act may, notwithstanding such order, apply for

adjustment of status under section 202(a)(1) of NACARA. Such an alien

may not be required, as a condition of submitting or granting such

application, to file a separate motion to reopen, reconsider, or vacate such

order. If the Attorney General grants the application, the Attorney

General shall cancel the order. If the Attorney General renders a final

administrative decision to deny the application, the order shall be

effective and enforceable to the same extent as if the application had not

been made.

(1) Section 202(g) of NACARA provides that when an alien’s status is

adjusted to that of an LPR, the Secretary of State is not required to

reduce the number of immigrant visas available to be issued.

2. Special rule for cancellation of removal for Salvadorans, Guatemalans, and

aliens from Soviet bloc countries. Section 203(b) of NACARA amended

section 309 of IIRIRA to add section 309(b) which provides that, subject to the

provisions of the Act in effect after IIRIRA, other than sections 240A(b)(1),

240A(d)(1), and 240A(e) [but including section 242(a)(2)(B)], the Attorney

General may cancel removal and adjust to the status of an LPR an alien who is

inadmissible or deportable from the U.S. who:

a. Applies for such relief;

b. Is described in section 203(a)(5)(C)(i) of NACARA;

(1) Has not been convicted of an aggravated felony;

(2) Was not apprehended after December 19, 1990; and

(3) Is a Salvadoran national who first entered the U.S. on or before

September 19, 1990 and who registered for benefits pursuant to the

settlement agreement in American Baptist Churches, et al v.

Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) on or before

October 31, 1991 or applied for TPS on or before October 31, 1991;

or

(a) For guidance on what constitutes evidence of registration for

benefits under the ABC settlement agreement, see ChalyGarcia v. United States, 508 F.3d 1201 (9th Cir. 2007). 
page 236 of 365

USCIS implemented a new nationwide policy in light of this

decision.

(4) Is a Guatemalan national who first entered the U. S. on or before

October 1, 1990, and who registered for benefits pursuant to the

settlement agreement in American Baptist Churches, et al v.

Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) on or before

October 31, 1991; or

(a) For guidance on what constitutes evidence of registration for

benefits under the ABC settlement agreement, see ChalyGarcia v. United States, 508 F.3d 1201 (9th Cir. 2007). 

USCIS implemented a new nationwide policy in light of this

decision.

(5) Is a Guatemalan or Salvadoran national who filed an application for

asylum with the INS on or before April 1, 1990; or

(6) Is the spouse or child (as defined in section 101(b)(1) of the Act) of

an individual described in this clause at the time the individual is

granted suspension or cancellation; or

(7) Is the unmarried son or daughter of an alien parent described in this

subclause at the time suspension or cancellation is granted the

parent - if the unmarried son or daughter is 21 years of age or older

at the time the decision is rendered, the son or daughter must have

entered the U.S. on or before October 1, 1990; or

(8) Is an alien who entered the U.S. on or before December 31, 1990

and who filed an application for asylum on or before that date, and

who was, at the time of filing the application, a national of the

Soviet Union, Russia, any republic of the former Soviet Union,

Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania,

Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state

of the former Yugoslavia.

c. The alien is not inadmissible or deportable under section 212(a)(2) or (3),

or section 237(a) (2), (3), or (4);

d. Is not an alien described in section 241(b)(3)(B)(i) of the Act;

e. Has been physically present in the U.S. for a continuous period of not less

than 7 years immediately preceding the date of application;

(1) The Board held that, as an application for special rule cancellation

of removal is deemed to be a “continuing” application, an applicant
page 237 of 365

can continue to accrue physical presence until a final administrative

decision is issued. Matter of Garcia, 24 I&N Dec. 179 (BIA 2007).

(2) The Ninth Circuit held that a minor who seeks NACARA relief as

derivative must personally satisfy the requirement of seven years of

continuous physical presence; and the parent's physical presence in

United States was not imputable to minor. Barrios v. Holder, 581

F.3d 849 (9th Cir. 2009). 

f. Has been a person of GMC during such period, and

g. Establishes that removal would result in extreme hardship to the alien or

the alien’s spouse, parent, or child who is a USC or LPR, or

h. If the alien is inadmissible or deportable under section 212(a)(2),

237(a)(2) [other than 237(a)(2)(A)(iii)], or 237(a)(3), and

i. Is not an alien described in section 241(b)(3)(B)(i) or section 101(a)(43)

[an alien convicted of an aggravated felony], and

j. Has been physically present in the U.S. for a continuous period of not less

than 10 years immediately following the commission of an act, or the

assumption of a status, constituting a ground for removal, and

k. Establishes that removal would result in exceptional and extremely

unusual hardship to the alien or the alien’s spouse, parent, or child who is

a USC or LPR.

3. Section 309(f)(2) of IIRIRA was amended to provide that section 240A(d)(2)

of the Act shall apply for purposes of calculating any period of continuous

physical presence, except that “reference to subsection (b)(1) in such section

shall be considered to be a reference to paragraph (1) of this section.”

4. Motions to reopen. Section 203(g) of NACARA provides that,

notwithstanding any limitation imposed by law on motions to reopen removal

or deportation proceedings (except limitations premised on an alien’s

conviction of an aggravated felony), any alien who has become eligible for

cancellation of removal or suspension of deportation as a result of the

amendments made by section 203 of NACARA may file one motion to reopen

removal or deportation proceedings to apply for cancellation of removal or

suspension of deportation. It also provides that the Attorney General shall

designate a specific time period in which all such motions to reopen are

required to be filed. The period shall begin not later than 60 days after the date

of enactment of NACARA and shall extend for a period not to exceed 240

days.
page 238 of 365

5. Calculation of physical presence for Salvadorans, Guatemalans, and aliens

from Soviet bloc countries. Section 203(a)(5)(C)(i) of NACARA provides

that, for purposes of calculating the period of continuous physical presence

under former section 244(a) of the Act (suspension of deportation) and section

240A of the Act (cancellation of removal for non-LPRs), subparagraph (A) and

sections 240A(d)(1) and (2) [relating to termination of and breaks in residence

or physical presence] shall not apply in the case of an alien, regardless of

whether in exclusion or deportation proceedings, who:

a. Has not been convicted of an aggravated felony;

b. Was not apprehended after December 19, 1990; and

(1) Is a Salvadoran national who first entered the U.S. on or before

September 19, 1990 and who registered for benefits pursuant to the

settlement agreement in American Baptist Churches, et al v.

Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) on or before

October 31, 1991 or applied for TPS on or before October 31, 1991;

or

(a) For guidance on what constitutes evidence of registration for

benefits under the ABC settlement agreement, see ChalyGarcia v. United States, 508 F.3d 1201 (9th Cir. 2007). 

USCIS implemented a new nationwide policy in light of this

decision.

(2) Is a Guatemalan national who first entered the U. S. on or before

October 1, 1990, and who registered for benefits pursuant to the

settlement agreement in American Baptist Churches, et al v.

Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) on or before

October 31, 1991; or

(a) For guidance on what constitutes evidence of registration for

benefits under the ABC settlement agreement, see ChalyGarcia v. United States, 508 F.3d 1201 (9th Cir. 2007). 

USCIS implemented a new nationwide policy in light of this

decision.

(3) Is a Guatemalan or Salvadoran national who filed an application for

asylum with the INS on or before April 1, 1990; or

(4) Is the spouse or child (as defined in section 101(b)(1) of the Act) of

an individual described in this clause at the time the individual is

granted suspension or cancellation; or

(5) Is the unmarried son or daughter of an alien parent described in this

subclause at the time suspension or cancellation is granted the
page 239 of 365

parent - if the unmarried son or daughter is 21 years of age or older

at the time the decision is rendered, the son or daughter must have

entered the U.S. on or before October 1, 1990; or

(6) Is an alien who entered the U.S. on or before December 31, 1990

and who filed an application for asylum on or before that date, and

who was, at the time of filing the application, a national of the

Soviet Union, Russia, any republic of the former Soviet Union,

Latvia, Estonia, Lithuania, Poland, Czechoslovakia, Romania,

Hungary, Bulgaria, Albania, East Germany, Yugoslavia, or any state

of the former Yugoslavia.

N. Advance parole

1. Advance parole is a mechanism by which a DD can, as a humanitarian

measure, advise an alien who is in the U.S., but who knows or fears that he will

be inadmissible if he leaves and tries to return, that he can leave with the

assurance that he will be paroled back into the U.S. upon return, under

prescribed conditions, if he cannot establish that he is admissible at that time;

Matter of G-A-C-, 22 I&N Dec. 83 (BIA 1998). In that same decision, the

Board pointed out that the term “advance parole” is something of a misnomer. 

An alien in the U.S. may request an advance authorization of parole and, if the

request is approved, the alien is not at that point paroled. Rather, the alien is

advised in advance of a departure that, if he meets certain requirements, he will

be paroled into the U.S. when he returns.

VIII. Defenses to removability available to aliens convicted of crimes

A. Introduction

1. The term “defense” is used to describe facts or law put forward to show that a

respondent is not removable. The term is used to distinguish it from “relief” in

which the alien is subject to removal but seeks a remedy which will prevent

removal, and from “waiver,” in which the alien is removable but seeks to have

the ground of removal overlooked or waived.

B. The charge requires a conviction and the conviction does not support the charge

1. Categorical and Modified Categorical Approach and Matter of Silva-Trevino

a. Aggravated Felonies - Categorical and Modified Categorical Approach

(1) To determine whether an alien’s conviction constitutes an

aggravated felony, the IJ must first apply the formal categorical

approach set forth by the Supreme Court in Taylor v. United States,

495 U.S. 575 (1990). Under the formal categorical approach, the IJ

must look only to the statutory definition of the offense and not the
page 240 of 365

evidence surrounding the defendant’s conviction to determine

whether the alien’s conviction constitutes an aggravated felony. See

id. at 600. If the statute of conviction is phrased in the disjunctive or

is divisible and contains some elements which constitute an

aggravated felony and others which do not, the IJ must apply the

modified categorical approach to determine which elements form

the basis for the underlying conviction. Evanson v. Att’y Gen., 550

F.3d 284, 291 (3d Cir. 2008); Larin-Ulloa v. Gonzales, 462 F.3d

456 (5th Cir. 2006); Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.

2002). In conducting a modified categorical analysis, the IJ should

consider the “statutory definition, charging document, written plea

agreement, transcript of the plea colloquy, and any explicit factual

finding by the trial judge to which the defendant assented.” Shepard

v. United States, 544 U.S. 13, 20-23 (2005)). See Nijhawan v.

Holder, 129 S.Ct. 2294 (2009).

(a) In United States v. Aguila-Montes de Oca, --- F.3d ----, No.

05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), the

Ninth Circuit held that the modified categorical approach may

be applied not only to divisible statues, but also to statutes

which are missing some element of the generic offense.

Examples of such statutes include statutes which are overinclusive (for example, prohibiting assault with a weapon

where the generic offense prohibits assault with a gun) and

those which are under-inclusive (for example, prohibiting

aggravated assault where the generic offense prohibits

aggravated assault with a gun). Id. at *8-21.

b. Crimes Involving Moral Turpitude - Matter of Silva-Trevino

(1) In Matter of Silva-Trevino, 24 I&N Dec. 687, 704 (A.G. 2008), the

Attorney General ruled that, in determining whether an alien’s

offense constitutes a CIMT, “adjudicators should: (1) look first to

the statute of conviction under the categorical inquiry . . . ; (2) if the

categorical inquiry does not resolve the question, look to the alien’s

record of conviction, including documents such as the indictment,

the judgment of conviction, jury instructions, a signed guilty plea,

and the plea transcript; and (3) if the record of conviction does not

resolve the inquiry, consider any additional evidence the adjudicator

determines is necessary or appropriate to resolve accurately the

moral turpitude question.” The second step of this process is

sometimes referred to as the modified categorical approach. Id. at

688. Absent otherwise controlling authority, IJs and the Board are

bound to apply these three steps. Matter of Guevara Alfaro, 25 I&N

Dec. 417 (BIA 2011). But see Jean-Louis v. Att’y Gen., 582 F.3d

462 (3d Cir. 2009) (declining to follow the Board’s approach in

determining CIMTs, and instead adhering to a purely categorical
page 241 of 365

and modified categorical approach); Fajardo v. Att’y Gen., --- F.3d -

---, Nos. 09-12962, 09-14845, 2011 WL 4808171 (11th Cir. Oct.

12, 2011) (agreeing with Third Circuit). See also, Guardado-Garcia

v. Holder, 615 F.3d 900 (8th Cir. 2010) (holding that, where SilvaTrevino is inconsistent with circuit law, circuit law will be

followed). 

(a) The record of conviction may include the contents of a police

report where they were specifically incorporated into the guilty

plea or were admitted by the alien during the criminal

proceedings. Matter of Milian-Dubon, 25 I&N Dec. 197 (BIA

2010).

(b) An IJ may only consider evidence outside of an alien’s record

of conviction if the conviction record itself does not

conclusively demonstrate whether the alien was convicted of

engaging in conduct that constitutes a crime involving moral

turpitude. Matter of Ahortalejo-Guzman, 25 I&N Dec. 465

(BIA 2011).

(c) The previous standard for determining whether an offense was

a CIMT was as follows:

i) In determining whether a crime involves moral

turpitude, it is the nature of the offense itself which

determines moral turpitude. Matter of Esfandiary, 16

I&N Dec. 659 (BIA 1979).

ii) The statute under which the conviction occurred

controls. If it defines a crime in which turpitude

necessarily inheres, then the conviction is for a CIMT. 

United States ex rel. Guarino v. Uhl, 107 F.2d 399 (2d

Cir. 1939); United States ex rel. Mylius v. Uhl, 210 F.

860 (2d Cir. 1914).

iii) Only where the statute under which the respondent was

convicted includes some offenses which involve moral

turpitude and some which do not involve moral turpitude

is the record of conviction consulted to determine for

which offense the respondent was convicted. The record

of conviction consists of the indictment, plea, verdict,

and sentence. Matter of Esfandiary, 16 I&N Dec. 659

(BIA 1979); Matter of Ghunaim, 15 I&N Dec. 269 (BIA

1975), modified on other grounds by Matter of Franklin,

20 I&N Dec. 867 (BIA 1994); Matter of Lopez, 13 I&N

Dec. 725 (BIA 1971), modified on other grounds by
page 242 of 365

Matter of Franklin, 20 I&N Dec. 867 (BIA 1994); Matter

of S-, 2 I&N Dec. 353 (BIA 1945).

iv) When the record of conviction does not establish under

which section of a divisible statute the respondent was

convicted, the offense is assumed to be the minimum

defined by the statute and moral turpitude cannot be

found. Matter of N-, 8 I&N Dec. 466 (BIA 1959).

v) Where an indictment or information charged a particular

offense but the respondent entered a plea of guilty to a

lesser offense, the allegations in the indictment which

pertain only to the greater offense are disregarded and

the remaining allegations to which the plea has been

taken are considered to determine whether there has been

a conviction of a CIMT. Matter of Beato, 10 I&N Dec.

730 (BIA 1964); Matter of W-, 4 I&N Dec. 241 (BIA

1951); Matter of M-, 2 I&N Dec. 525 (BIA 1946).

2. Crimes involving moral turpitude (CIMT). “Moral turpitude” does not have a

clear definition. Individual decisions of the Board and the courts must be

reviewed before reaching a conclusion. See pages 21-25 above for discussion

of CIMT as ground of inadmissibility and pages 49-53 above for discussion of

CIMT as grounds of deportability.

a. Some of the more esoteric definitions mentioned by the Board are:

“anything done contrary to justice, honesty, principle, or good morals,”

“an act of baseness, vileness, or depravity in the private social duties

which man owes to his fellow man or to society,” “a crime involves

moral turpitude when its nature is such that it manifests upon the part of

its perpetrator personal depravity or baseness.” Matter of Awaijane, 14

I&N Dec. 117 (BIA 1972); Matter of Sloan, 12 I&N Dec. 840 (BIA 1966;

A.G. 1968); Matter of E-, 2 I&N Dec. 134 (BIA 1944).

b. Perhaps the most practical definition is from a Dec. 5, 1922 opinion of

the Solicitor of the Department of Labor. It is quoted by the Board in

Matter of E-, 2 I&N Dec. 134 (BIA 1944), “A crime involving moral

turpitude may be either a felony or a misdemeanor, existing at common

law or created by statute, and is an act or omission which is malum in se

and not merely malum prohibitum; which is actuated by malice or

committed with knowledge and intention and not done innocently or

without inadvertence or reflection; which is so far contrary to the moral

law, as interpreted by the general moral sense of the community, that the

offender is brought to public disgrace, is no longer generally respected, or

is deprived of social recognition by good living persons; but which is not

the outcome merely of natural passion, of animal spirits, of infirmity of
page 243 of 365

temper, of weakness of character, of mistaken principles, unaccompanied

by a vicious motive or corrupt mind.”

c. The Board has adopted the requirement of intent and holds that a test in

determining what crimes involve moral turpitude is whether the act is

accompanied by a “vicious motive” or “corrupt mind.” A crime must by

its very nature and at its minimum, as defined by statute, involve an evil

intent before a finding of moral turpitude would be justified. Malicious

and mischievous intention, or what is equivalent to such intention, is the

broad boundary between right and wrong and between crimes involving

moral turpitude and those which do not. Matter of Awaijane, 14 I&N

Dec. 117 (BIA 1972); Matter of P-, 3 I&N Dec. 56 (BIA 1948); Matter of

E-, 2 I&N Dec. 134 (BIA 1944).

(1) The Board has held that an “evil intent” (actually its equivalent)

may be found in a statute based on “recklessness” rather than

specific criminal intent, such as manslaughter defined as recklessly

causing the death of another. The Board held that recklessness is

evidenced when a person is “aware of and consciously disregards a

substantial and unjustifiable risk” and the risk “constitutes a gross

deviation from the standard of conduct that a reasonable person

would observe in the situation.” Matter of Franklin, 20 I&N Dec.

867 (BIA 1994); Matter of Wojtkow, 18 I&N Dec. 111 (BIA 1981).

(2) Statutory rape has been found to involve moral turpitude even

though it is a strict liability offense. Castle v. INS, 541 F.2d 1064

(4th Cir. 1976); Marciano v. INS, 450 F.2d 1022 (8th Cir. 1971);

Matter of Dingena, 11 I&N Dec. 723 (BIA 1966). 

d. The Board has also suggested, on occasion, that part of the test for the

existence of moral turpitude in connection with the violation of a law

requires the doing of an act which is malum in se rather than malum

prohibitum. Matter of A-, 5 I&N Dec. 52 (BIA 1953); Matter of E-, 2

I&N Dec. 134 (BIA 1944).

e. General considerations

(1) Moral turpitude does not depend on felony or misdemeanor

distinction. Tillinghast v. Edmead, 31 F.2d 81 (1st Cir. 1929);

Matter of Short, 20 I&N Dec. 136 (BIA 1989).

(2) Neither the seriousness of a criminal offense nor the severity of the

sentence imposed is determinative of whether a crime involves

moral turpitude. Matter of Serna, 20 I&N Dec. 579 (BIA 1992).
page 244 of 365

(3) Conduct must be deemed criminal under U. S. law. Matter of

McNaughton, 16 I&N Dec. 569 (BIA 1978), aff'd McNaughton v.

INS, 612 F.2d 457 (9th Cir. 1980).

(4) Moral turpitude is judged by U.S. standards. Id.

(5) The Board of Immigration Appeals and the IJ are bound by the

record of conviction and may not retry the criminal case. 

Giammario v. Hurney, 311 F.2d 285 (3d Cir. 1962).

(6) If an offense involves moral turpitude, then an attempt to commit

that crime involves moral turpitude. United States ex rel. Meyer v.

Day, 54 F.2d 336 (2nd Cir. 1931); Matter of Awaijane, 14 I&N Dec.

117 (BIA 1972). If the substantive offense underlying an alien’s

conviction for an attempt offense is a crime involving moral

turpitude, the alien has been convicted of a crime involving moral

turpitude. Matter of Vo, 25 I&N Dec. 426 (BIA 2011)

(7) If an offense involves moral turpitude, then a conspiracy to commit

that offense also involves moral turpitude. Matter of E-, 9 I&N

Dec. 421 (BIA 1961).

(8) If a crime involves moral turpitude, then a conviction for aiding in

the commission of that crime or otherwise acting as an accessory

before the fact also involves moral turpitude. Matter of Short, 20

I&N Dec. 136 (BIA 1989); Matter of F-, 6 I&N Dec. 783 (BIA

1955).

(9) An assault with intent to commit a felony is not per se a CIMT

without regard to whether the underlying felony involves moral

turpitude. There must be a finding that the felony intended as a

result of the assault involves moral turpitude. Matter of Short, 20

I&N Dec. 136 (BIA 1989).

(10) Any intentional sexual conduct by an adult with a child involves

moral turpitude, as long as the perpetrator knew or should have

known that the victim was a child. Matter of Guevara Alfaro, 25

I&N Dec. 417 (BIA 2011).

f. Specific offenses:

(1) Money laundering under New York Penal Law § 470.10(1) is a

CIMT. Matter of Tejwani, 24 I&N Dec. 97 (BIA 2007), rev’d by

Tejwani v. Att’y Gen., 349 F. App’x 719 (3d 2009).
page 245 of 365

(2) Trafficking in counterfeit goods or services in violation of 18

U.S.C. § 2320 is a CIMT. Matter of Kochlani, 24 I&N Dec. 128

(BIA 2007).

(3) Willful failure to register as a sex offender by an individual who has

previously been apprised of the obligation to register, in violation of

section 290(g)(1) of the California Penal Code, is a CIMT. Matter

of Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007). However, in

Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008), the

Ninth Circuit ruled that the Nevada offense of failing to register as a

sex offender, under Nev. Rev. Stat. 179D.550, is not a CIMT;

see also Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011)(finding

that the Board’s interpretation of “moral turpitude” as

encompassing the misdemeanor offense of “failure to register” was

“not a ‘reasonable policy choice for the agency to make.’”) 

(4) Third degree assault under New York Penal Law § 102.00(1) is a

CIMT. A person is guilty of this offense when, "[w]ith intent to

cause physical injury to another person, he causes such injury to

such person or to a third party." Matter of Solon, 24 I&N Dec. 239

(BIA 2007). Similarly, criminal reckless conduct under Ga. Code.

Ann. § 16-5-60(b) (which is a lesser-included offense to aggravated

assault), is categorically a CIMT where (1) there was a conscious

disregard of substantial and unjustifiable risk to the safety of others

coupled with a culpable mental state, (2) there was a gross deviation

from a reasonable standard of care, and (3) the person caused actual

bodily harm to or endangered the bodily safety of another. Keungne

v. Att’y Gen., 561 F.3d 1281 (11th Cir. 2009). 

(5) Assault and battery against a family or household member under

Virginia Code § 18.2-57.2 is not categorically a CIMT. A person is

guilty of this offense if he or she "commits an assault and battery

against a family or household member." Matter of Sejas, 24 I&N

Dec. 236 (BIA 2007).

(6) Burglary of an occupied dwelling in violation of Florida Statutes §

810.02(3)(a) is categorically a CIMT. Matter of Louissaint, 24 I&N

Dec. 754 (BIA 2009).

(7) Fraudulent use of a social security number or identifying

information is a crime involving moral turpitude. See Guardado v.

Holder, 615 F.3d 900 (8th Cir. 2010); Lateef v. DHS, 592 F.3d 926

(8th Cir. 2010); Serrato-Soto v. Holder, 570 F.3d 686 (6th Cir.

2009)(citing Matter of Kochlani, 24 I&N Dec. 128, 130 (BIA

2007)); Hyder v. Keilser, 506 F.3d 388 (5th Cir. 2007); but see

Beltran-Tirado v. INS, 213 F.3d 1179 (9th Cir. 2000)(holding that
page 246 of 365

use of a false social security number to establish credit and work in

the United States did not involve moral turpitude). 

(8) Fraud -“[A] crime in which fraud is an ingredient involves moral

turpitude.” Jordan v. De George, 341 U.S. 223, 227 (1951). The

Ninth Circuit held that a conviction for providing false information

to obtain credit cards and using the cards to obtain goods, in

violation of Cal. Penal Code § 532(a)(1), constitutes a CIMT

because it involves fraud. Tijani v. Holder, 598 F.3d 647 (9th Cir.

2010), superseded by Tijani v. Holder, 628 F.3d 1071 (9th Cir.

2010). 

(9) Theft - Theft or larceny offenses generally involve moral turpitude. 

Matter of Louissaint, 24 I&N Dec. 754 (BIA 2009) (burlary); Matter

of Jurado-Delgado, 24 I&N Dec. 29 (BIA 2006) (retail theft);

Matter of Kim, 17 I&N Dec. 144 (BIA 1979) (robbery). Circuit

courts have generally agreed that theft offenses involve moral

turpitude. See, e.g., Fitzgerald ex rel. Miceli v. Landon, 238 F.2d

864, 865-66 (1st Cir. 1956); Garcia-Padron v. Holder, 558 F.3d 196,

198 (2d Cir. 2009); Tassari v. Schmucker, 53 F.2d 570, 572-73 (4th

Cir. 1931); Cina v. INS, 989 F.2d 498 (6th Cir. 1993)

(unpublished); United States v. Martinez-Gonzales, 916 F.2d 715

(7th Cir. 1990) (unpublished); Costello v. Ramsey, 88 F.2d 622,

623 (8th Cir. 1937); Mendoza v. Holder, 623 F.3d 1299 (9th Cir.

2010); Camacho-Salinas v. Att’y Gen., 460 F.3d 1343, 1345 (11th

Cir. 2006). 

(10) Certain Aggravated DUIs - Deferring to the Board, the Ninth Circuit

held that a conviction for aggravated DUI (DUI while license

suspended, cancelled, etc.), which involved actual driving was a

CIMT, based on the reasoning in Matter of Lopez-Meza, 22 I&N

Dec. 1188 (BIA 1999). Marmolejo-Campos v. Holder, 558 F.3d

903 (9th Cir. 2009) (en banc). The court found that an aggravated

DUI involved the presence of a culpable mental state – that is, the

defendant knew at the time of the DUI that his/her license was

suspended. Id. Similarly, the Eighth Circuit held that child

endangerment resulting in bodily injury pursuant to Iowa Code

sections 321J.2, 726.6(1)(a), and 726.6(2) is a CIMT. The court

reasoned that while the underlying offense of driving under the

influence is not normally a CIMT by itself, the respondent’s

conviction for conscious disregard of a substantial risk of harm to a

child is an aggravating factor implicating moral turpitude. 

Hernandez-Perez v. Holder, 569 F.3d 345 (8th Cir. 2009). 

g. Determination of moral turpitude. 
page 247 of 365

(1) See pages 240-242 above for discussion of Matter of Silva-Trevino,

24 I&N Dec. 687 (A.G. 2008), and the categorical approach.

(2) Where the record of conviction does not clearly establish whether a

crime involves moral turpitude, and the alien has the burden of

proof (for purposes of demonstrating eligibility for relief), there is a

Circuit Split as to the outcome. See Sandoval-Lua v. Gonzales, 499

F.3d 1121, 1130 (9th Cir. 2007) (holding that an alien can satisfy

his burden of demonstrating eligibility for cancellation of removal

by producing record of conviction that is inconclusive as to whether

his crime would disqualify him for that relief). See also RosasCastaneda v. Holder, 630 F.3d 881, 888 (9th Cir. 2011) (holding

that Sandoval-Lua applies to applications for relief submitted under

the REAL ID Act), superseded on rehearing by Rosas-Castaneda v.

Holder, --- F.3d ----, No. 10-70087, 2011 WL 4014321 (9th Cir.

Sept. 12, 2011); Young v. Holder, 653 F.3d 897 (9th Cir. 2011). But

see Garcia v. Holder, 584 F.3d 1288 (10th Cir. 2009) (affirming the

Board’s decision and finding that the alien failed to establish that he

was eligible for relief from removal because it was unclear from the

record of conviction whether his assault offense was a CIMT);

Salem v. Holder, 647 F.3d 111 (4th Cir. 2011) (holding that an alien

applying for cancellation of removal cannot satisfy his burden of

proving eligibility by presenting an inconclusive record of

conviction where he was convicted under a statute that encompasses

aggravated felony theft offenses and offenses that would not be an

aggravated felony). 

3. The conviction is not final due to an appeal.

a. A conviction pending direct appeal is not final. Pino v. Landon, 349 U.

S. 901 (1955) (per curiam); Kabongo v. INS, 837 F.2d 753 (6th Cir.

1988); Will v. INS, 447 F.2d 529 (7th Cir. 1971); Morales-Alvarado v.

INS, 655 F.2d 172 (9th Cir. 1981).

b. This means an appeal as of right and not where there is discretion to

accept or reject the appeal or where the alien is making a collateral attack

on the conviction. Morales-Alvarado v. INS, 655 F.2d 172 (9th Cir.

1981); Matter of Polanco, 20 I&N Dec. 894 (BIA 1994). The possibility

or pendency of post-conviction motions or other forms of collateral

attack, not constituting direct appeals, do not serve to negate the finality

of a conviction or the charge of deportability for immigration purposes,

unless and until the conviction is overturned pursuant to such motions. 

Marino v. INS, 537 F.2d 686 (2nd Cir. 1981); Moosa v. INS, 171 F.3d

994, 1009 (5th Cir. 1999)(concluding that there is nothing in the text or

legislative history of section 1101(a)(48)(A) indicating “that the finality

requirement imposed by Pino, and this court, prior to 1996, survives the

new definition of ‘conviction’.”); Okabe v. INS, 671 F.2d 863 (5th Cir.
page 248 of 365

1982); Aquilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975);

Montenegro v. Ashcroft, 355 F.3d 1035, 1037 (7th Cir. 2004)(per

curiam)(relying on plain language of § 1101(a)(48)(A) to dismiss alien’s

contention that he was unlawfully ordered removed while he still had

direct appeals pending); Morales-Alvarado v. INS, 655 F.2d 172, (9th

Cir. 1981); Matter of Polanco, 20 I&N Dec. 894 (BIA 1994); see also

Griffiths v. INS, 243 F.3d 45, 50-51 (1st Cir. 2001)(observing that

finality is not required under the deferred-adjudication portion of §

101(a)(48)(A)). 

(1) In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme

Court held that the Sixth Amendment requires criminal defense

counsel to advise a noncitizen client of the risk of deportation

arising from a guilty plea. The Court held the two-pronged test in

Strickland v. Washington, 466 U.S. 668 (1984) was appropriate to

determine whether defense counsel’s failure to advise, or misadvice,

regarding the immigration consequences of the plea constituted

ineffective assistance of counsel. Padilla, 130 S.Ct. at 1476, citing

Strickland, 466 U.S. at 688, 694. Specifically, the Court held that

when the risk of removal resulting from a guilty plea is “clear,”

counsel must advise his or her client that “deportation [is]

presumptively mandatory”; whereas, when the risk is less clear,

counsel need only advise the defendant “that pending criminal

charges may carry a risk of adverse immigration consequences.” 

Padialla, 130 S. Ct. at 1483. However, as noted above, the fact that

an alien may be pursuing post-conviction relief in the form of a

collateral (for immigration purposes) attack on a conviction in state

criminal court does not affect the conviction’s finality for federal

immigration purposes. Matter of Adetiba, 20 I&N Dec. 506 (BIA

1992). The conviction is final, unless and until it is overturned by

the criminal court. See Matter of Ponce de Leon, 21 I&N Dec. 154

(A.G. 1997; BIA 1997, 1996); see also Paredes v. Att’y Gen., 528

F.3d 196, 198 (3d Cir. 2009); United States v. Garcia-Echaverria,

374 F.3d 440, 445-46 (6th Cir. 2004); Jimenez-Guzman v. Holder,

642 F.3d 1294 (10th Cir. 2011)(finding IJ’s denial of motion to

continue was “eminently rational”). 

(a) Immigration judges may encounter adjournment requests and

motions for continuance asserted under Padilla. Such requests

should be carefully considered as to whether or not the

conviction will be overturned for immigration purposes is

speculative. Under 8 C.F.R. § 1003.29 and 8 C.F.R. § 1240.6,

the IJ may grant a motion for a continuance or an adjournment

request for good cause shown. See Matter of Hashmi, 24 I&N

Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA

2009); Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA

1987). 
page 249 of 365

c. An alien who has waived or exhausted the right to a direct appeal of a

conviction is subject to deportation, and the potential for discretionary

review on direct appeal will not prevent the conviction from being

considered final for immigration purposes. Matter of Polanco, 20 I&N

Dec. 894 (BIA 1994). In that case, the respondent had failed to appeal

the conviction within the time allowed but, under the New Jersey Rules

of Court, he had submitted a late appeal which the court treated as an

application for leave to file a nunc pro tunc appeal. The court could then

consider whether to allow the appeal but there were no time constraints

for the decision to be made. Nor was there a limit to the period during

which a defendant could request permission to take a nunc pro tunc

appeal. The Board held that to find a conviction not final because the

respondent had the right at any time to apply for a late appeal could delay

deportation proceedings indefinitely.

d. Following the rationale of Matter of Polanco, 20 I&N Dec. 894 (BIA

1994), the Board held that a pending late-reinstated appeal of a criminal

conviction, filed pursuant to New York Criminal Procedure Law, did not

undermine the finality of the conviction for immigration purposes. Matter

of Cardenas Abreu, 24 I&N Dec. 795 (BIA 2009). The Board noted that

the New York Criminal Procedure Law had deadlines for making a

request to file a late appeal, but that the resolution of such a motion had

no time limit. Id. at 800-01. The Board cited congressional intent to

prevent the immigration laws from being “dependent on the vagaries of

State law” when it defined “conviction” as support for its conclusion that

the alien’s conviction was final. Id. at 802.

e. Following the rationale of Morales-Alvarado v. INS, 655 F.2d 172 (9th

Cir. 1981), the Board held that an alien who failed to file a timely appeal

from a conviction in New Jersey has a final conviction for immigration

purposes, despite the potential for seeking a nunc pro tunc appeal

because, under New Jersey law, the decision to allow a nunc pro tunc

appeal is discretionary and not routinely granted. Matter of Polanco, 20

I&N Dec. 894 (BIA 1994). The Board noted that the New Jersey Rules

of Court contain no time constraints to limit the period during which a

defendant may request permission to take a nunc pro tunc appeal and

stated that to hold that a conviction in New Jersey is not final simply

because an alien has a right to apply for a late appeal would postpone

indefinitely his deportation proceedings, a result that Congress did not

intend.

f. The Board has held that while a conviction on direct appeal may not

support a finding of deportability, it may still be considered in the

exercise of discretion. Matter of Gonzalez, 16 I&N Dec. 134 (BIA 1977);

Matter of Turcotte, 12 I&N Dec. 206 (BIA 1967).
page 250 of 365

(1) An alien's extensive criminal history, which included an expunged

felony conviction for assaulting a police officer, may be considered

in deciding whether voluntary departure is merited as a matter of

discretion. Villanueva-Franco v. INS, 802 F.2d 327 (9th Cir. 1986).

(2) An alien's arrest on a drug charge may be considered as a

discretionary factor in a 212(c) application, even though the arrest

never resulted in a conviction because the charges were dismissed

following the alien's completion of a pre-trial diversion program. 

Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994).

(3) Criminal charges which were placed “on file” by a state court under

a procedure peculiar to Massachusetts law and which therefore did

not constitute convictions may still be considered as “some

evidence weighing against discretionary relief,” particularly where

the alien had pleaded guilty to one charge and was found guilty to

one charge and was found guilty by a jury on another. White v. INS,

17 F.3d 475 (1st Cir. 1994).

(4) In determining whether a favorable exercise of discretion is

warranted on an alien's application for a waiver under section 212(i)

of the Act, the Board could consider not only his foreign in absentia

convictions for criminal association, forgery, and possession of

firearms, but also murder charges pending against him and the

extradition proceedings spawned by those charges. Esposito v. INS,

936 F.2d 911 (7th Cir. 1991).

(5) In determining whether or not voluntary departure is merited as a

matter of discretion, felony arson charges pending against the

respondent may be considered. Parcham v. INS, 769 F.2d 1001 (4th

Cir. 1985). The court stated that although the alien was acquitted of

the charges during the pendency of the circuit court appeal, this fact

did not alter its decision and stated that evidence of an alien's

conduct, without a conviction, may be considered in denying the

discretionary relief of voluntary departure and the Attorney General

is entitled to consider the facts as they exist at the time he acts and

does not have to wait for the disposition of pending criminal

charges.

(6) Where an alien's conduct results in his having had contact with the

criminal justice proceedings, the nature of those contacts and the

stage to which those proceedings have progressed should be taken

into account and weighed accordingly. Hence, the probative value

of and corresponding weight, if any, assigned to evidence of

criminality will vary according to the facts and circumstances of

each case and the nature and strength of the evidence presented. 

Matter of Thomas, 21 I&N Dec. 20 (BIA 1995).
page 251 of 365

(7) Where an alien has been convicted following a jury trial of several

crimes but the convictions are not final due to an appeal, the fact

that he has been so convicted constitutes significant evidence that

he has committed the crimes and the conduct underlying those

convictions is a significant adverse factor to be weighed in deciding

whether he merits VD as a matter of discretion. Matter of Thomas,

21 I&N Dec. 20 (BIA 1995).

(8) Where an alien has been imprisoned only as a result of non-final

convictions, his conduct while in prison is independent of that

which resulted in his convictions and any disciplinary infractions he

may have committed while in prison may be considered as adverse

factors in the exercise of discretion. Matter of Thomas, 21 I&N

Dec. 20 (BIA 1995).

(9) Evidence of an alien's arrest bears upon whether he might have

engaged in the underlying conduct and is probative of relevant

discretionary factors. Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th

Cir. 1994).

(10) An alien's in absentia convictions may at the very least constitute

probable cause to believe he is guilty of the crimes in question. 

Esposito v. INS, 936 F.2d 911 (7th Cir. 1991).

(11) Pending murder charges against an alien are indicative of probable

cause that he committed the murders and that “reasonable minds

suspect that he is guilty of the crimes charged.” Id.

(12) Police reports implicating a respondent in criminal activity but

which never resulted in prosecution due to a lack of sufficient

evidence are not probative. Sierra-Reyes v. INS, 585 F.2d 762 (5th

Cir. 1978).

(13) A non-final conviction resulting from an alien's own guilty plea or a

conviction following a trial by jury is entitled to substantial weight

in the exercise of discretion. Matter of Thomas, 21 I&N Dec. 20

(BIA 1995).

(14) The admission into evidence of police reports concerning the

circumstances of an alien's arrest is especially appropriate in cases

involving discretionary relief, where all relevant factors regarding

an alien's arrest and conviction should be considered. Matter of

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

(15) In Matter of Arreguin, 21 I&N Dec. 38 (BIA 1995), the Board held

that it is “hesitant” to give substantial weight to an arrest report
page 252 of 365

absent a conviction or corroborating evidence of the allegations

contained therein. The alien conceded that the arrest took place but

admitted to no wrongdoing. Considering that prosecution was

declined and there was no corroboration, from the alien or

otherwise, the Board gave the arrest report little weight in the

exercise of discretion.

4. Pardons

a. Pardons of crimes involving moral turpitude.

(1) History lesson - Former section 241(b) which provided that an alien

who has received a pardon is not deportable under former section

241(a)(4) was repealed by the Immigration Act of 1990. Former

section 241(e) was redesignated as section 241(b). However, the

Immigration Act of 1990 also enacted section 241(a)(2)(A)(iv)

which provided that the provisions of section 241(a)(2)(A)(i)

[relating to aliens convicted of a CIMT] shall not apply in the case

of an alien who, after the conviction, has been granted a full and

unconditional pardon by the President of the U.S. or by the

Governor of any state.

(2) As added by IIRIRA, section 237(a)(2)(A)(v) of the Act now

provides that clauses (i), (ii), (iii), and (iv) [of section 237(a)(2)(A)]

shall not apply in the case of an alien with respect to a criminal

conviction if the alien subsequent to the criminal conviction has

been granted a full and unconditional pardon by the President of the

U.S. or by the Governor of any state. The clauses listed are as

follows:

(a) 237(a)(2)(A)(i) - CIMT w/in 5 years of admission;

(b) 237(a)(2)(A)(ii) - 2 CIMTs not arising out of a single scheme;

(c) 237(a)(2)(A)(iii) - aggravated felony;

(d) 237(a)(2)(A)(iv) - high speed flight.

(3) A presidential or gubernatorial pardon waives only the grounds of

removal specifically set forth in section 237(a)(2)(A)(v) of the Act,

and no implicit waivers may be read into the statute. Therefore, a

respondent’s pardon of a conviction for sexual battery of a minor

did not waive his removability as an alien convicted of a crime of

domestic violence or child abuse under section 237(a)(2)(E)(i) of

the Act, because that section is not specifically included in section

237(a)(2)(A)(v). Matter of Suh, 23 I&N Dec. 626 (BIA 2003).
page 253 of 365

(4) Only an executive pardon will prevent deportation; a legislative

pardon is no bar to deportability. Matter of R-, 6 I&N Dec. 444

(BIA 1954); Matter of R-, 5 I&N Dec. 612 (BIA 1954).

(5) However, if a state has a constitutional provision which allows

pardon authority to be exercised by a board or by a commission,

such a pardon is considered an executive pardon. Matter of Tajer,

15 I&N Dec. 125 (BIA 1974), Matter of D-, 7 I&N Dec. 476 (BIA

1957).

(6) An executive pardon must be unconditional in order to prevent

deportation. It may not be dependent upon a condition precedent or

a condition subsequent. Matter of C-, 5 I&N Dec. 630 (BIA 1954).

(7) A foreign pardon (or amnesty, expungement, or extinction) is not

effective to prevent deportation. Matter of G-, 5 I&N Dec. 129

(BIA 1953); Matter of F-y G-, 4 I&N Dec. 717 (BIA 1952).

(8) The availability of a pardon under state or federal law, or the

existence or nonexistence of a qualifying pardoning authority, is not

determinative of whether an offense constitutes a crime for

immigration purposes. Matter of Nolan, 19 I&N Dec. 539 (BIA

1988).

b. Pardons of drug offenses

(1) The provisions of former section 241(b) regarding pardons were

applicable only to aliens deportable under former section

241(a)(4)(A) and the statute specifically provided that the

provisions regarding pardons were not applicable in the case of an

alien deportable under former section 241(a)(11) for a drug

conviction. 

(2) Former section 241(b) was repealed by the Immigration Act of 1990

and former section 241(e) was redesignated as section 241(b).

(3) Former section 241(a)(2)(B) and present section 237(a)(2)(B)

dealing with the deportability of aliens convicted of drug offenses

do not provide an exception for aliens who receive a pardon.

Therefore, an alien convicted of an offense relating to controlled

substances is deportable even if he is granted a pardon.

c. Pardons of aggravated felonies

(1) The amendments contained in the Immigration Act of 1990 brought

about a confusing situation regarding pardons granted to aliens

convicted of an aggravated felony.
page 254 of 365

(2) Section 505 of the Immigration Act of 1990 amended section

241(b) to provide that its provisions which prevented the

deportation of an alien receiving a pardon would not apply to aliens

convicted of an aggravated felony. This amendment took effect on

November 29, 1990 and applied to convictions entered before, on,

or after that date.

(3) Section 602(b) of the Immigration Act of 1990 repealed section

241(b) and redesignated former section 241(e) as 241(b). This

amendment was not applicable to deportation proceedings for which

notice was provided before March 1, 1991.

(4) Section 602(a) of the Immigration Act of 1990 amended section

241(a) to include section 241(a)(2)(A)(iv) which provided that

clauses (i) [aliens convicted of a CIMT committed within 5 years of

entry and sentenced to a year or longer], (ii) [aliens convicted of 2

or more CIMTs], and (iii) [aliens convicted of an aggravated felony]

of section 241(a)(2)(A) shall not apply to aliens who have been

granted a full and unconditional pardon by the President of the U.S.

or by the Governor of any state. This amendment was not

applicable to deportation proceedings for which notice was

provided before March 1, 1991.

(5) The only way to make sense of these amendments would be to view

the situation as follows:

(a) Aliens convicted of an aggravated felony who received notice

of their deportation hearing before March 1, 1991 and were

therefore deportable under former section 241(a)(4)(B) are

deportable even if they are granted a pardon.

(b) Aliens convicted of an aggravated felony who received notice

of their deportation hearing on or after March 1, 1991 and are

deportable under current section 237(a)(2)(A)(iii) are not

deportable if they have received a full and unconditional

pardon from the President of the U.S. or the Governor of any

state.

5. The criminal proceeding did not result in a “conviction” within the meaning of

the Immigration and Nationality Act. 

a. Section 322 of the IIRIRA added section 101(a)(48)(A) to the Act. It

reads as follows: “The term ‘conviction’ means, with respect to an alien,

a formal judgment of guilt of the alien entered by the court, or if

adjudication of guilt has been withheld, where
page 255 of 365

(1) a judge or jury has found the alien guilty or the alien has entered a

plea of guilty or nolo contendere or has admitted sufficient facts to

warrant a finding of guilt, and

(2) the judge has ordered some form of punishment, penalty, or restraint

on the alien's liberty to be imposed.”

b. The Board has noted that section 322(c) of IIRIRA, which added section

101(a)(48)(A) to the Act, specifically states that its amendments “shall

apply to convictions and sentences entered before, on, or after the date of

enactment of this Act.” Therefore the date when a conviction took place

is of no consequence. Matter of Punu, 22 I&N Dec. 224 (BIA 1998).

c. The Board has held that the imposition of costs and surcharges in the

criminal sentencing context constitutes a form of “punishment” or

“penalty” for purposes of establishing that an alien has suffered a

“conviction” within the meaning of section 101(a)(48)(A). Matter of

Cabrera, 24 I&N Dec. 459 (BIA 2008).

d. The Board has ruled that a judgement of guilt entered by a general courtmartial of the U.S. Armed Forces qualifies as a “conviction” within the

meaning of section 101(a)(48)(A). Matter of Rivera-Valencia, 24 I&N

Dec. 484 (BIA 2008).

e. State convictions of a minor who was tried as an adult. The First,

Second, Ninth and Eleventh Circuits have held that an alien’s conviction

as an adult in state court is a conviction for immigration purposes, even

though the alien was a minor at the time and would not have been eligible

for transfer to a federal adult court under the Federal Juvenile

Delinquency Act (“FJDA”) standards. Vieira Garcia v. INS, 239 F.3d

409 (1st Cir. 2001); Savchuck v. Mukasey, 518 F.3d 119, 122 (2nd Cir.

2008); Vargas-Hernandez v. Gonzales, 497 F.3d 919, 922-23 (9th Cir.

2007); Singh v. Att’y Gen., 561 F.3d 1275, 1279 (11th Cir. 2009). 

f. Deferred Adjudication Statutes.

(1) In Crespo v. Holder, 631 F.3d 130 (4th Cir. 2011), the Fourth

Circuit held that an alien’s prior deferred adjudication for

possession of marijuana, under Virginia law applying to first

offenders, did not qualify as “conviction,” within meaning of

section 101(a)(48)(A), because the alien pled not guilty and the

adjudication lacked sufficient finding of guilt.

6. Expungements of criminal convictions.

a. Prior to the enactment of section 101(a)(48)(A) of the Act, a conviction

which was expunged would not support an order of deportation. See e.g.,
page 256 of 365

Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), superseded by INA §

101(a)(48)(A). However, an expungement of a conviction for a

controlled substances offense would not eliminate the conviction for

immigration purposes because the manner in which a state deals with a

person after his conviction is not controlling in a deportation proceeding. 

Rehman v. INS, 544 F.2d 71 (2d Cir. 1976), superseded by statute as in

Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001); Yanez-Popp v. INS, 998

F.2d 231 (4th Cir. 1993); Gonzalez de Lara v. INS, 439 F.2d 1316 (5th

Cir. 1971); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975); Will

v. INS, 447 F.2d 529 (7th Cir. 1971); de la Cruz-Martinez v. INS, 404

F.2d 1198 (9th Cir. 1968). The expungement of drug offenses was later

found to eliminate a conviction for immigration purposes when

expungement was pursuant to the provisions of the Federal Youth

Corrections (which has since been repealed) or the first offender

provisions of the Controlled Substances Act, 21 U.S.C. § 844(b)(1). 

Matter of Werk, 16 I&N Dec. 234 (BIA 1977); Matter of Zingis, 14 I&N

Dec. 621 (BIA 1974). In Matter of Manrique, the Board expanded the

elimination of controlled substances convictions for immigration

purposes to include expungements under a state rehabilitative statute if

the alien would have been eligible for federal first offender treatment if

he had been prosecuted under federal law. 21 I&N Dec. 58 (BIA 1995).

b. With the passage of the IIRIRA, Congress provided a statutory definition

for the term, adding section 101(a)(48)(A) of the Act which states: 

(1) The term “conviction” means, with respect to an alien, a formal

judgment of guilt of the alien entered by a court or, if adjudication

of guilt has been withheld, where

(a) a judge or jury has found the alien guilty or the alien has

entered a plea of guilty or nolo contendere or has admitted

sufficient facts to warrant a finding of guilt, and

(b) the judge has ordered some form of punishment, penalty, or

restraint on the alien’s liberty to be imposed.

(2) Section 322(c) of the IIRIRA states that the definition applies “to

convictions and sentences entered before, on, or after the date of the

enactment” of the Act.

c. In light of this definition, the Board held that no effect is to be given in

immigration proceedings to a state action which purports to expunge,

dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or

other record of guilt or conviction by operation of a state rehabilitative

statute and once an alien is subject to a “conviction” as that term is

defined at section 101(a)(48)(A) of the Act, the alien remains convicted

for immigration purposes notwithstanding a subsequent state action
page 257 of 365

purporting to erase the original determination of guilt through a

rehabilitative procedure Matter of Roldan, 22 I&N Dec. 512 (BIA 1999). 

Therefore, an alien, who has had his guilty plea to the offense of

possession of a controlled substance vacated and his case dismissed upon

termination of his probation pursuant to section 19-2604(1) of the Idaho

Code, is considered to have a conviction for immigration purposes. Id.

d. The Board also stated, “Our decision is limited to those circumstances

where an alien has been the beneficiary of a state rehabilitative statute

which purports to erase the record of guilt. It does not address the

situation where the alien has had his or her conviction vacated by a state

court on direct appeal, wherein the court determines that vacation of the

conviction is warranted on the merits, or on grounds relating to a

violation of a fundamental statutory or constitutional right in the

underlying criminal proceedings. We also do not reach the issue of the

effect of noncollateral challenges to a conviction on these grounds that

are pending in state court while an alien is in deportation proceedings.”

e. All of the circuits agreed with the Board’s decision in Matter of Roldan,

while initially the Ninth Circuit disagreed. See, e.g., Wellington v.

Holder, 623 F.3d 115 (2d Cir. 2010); Lujan-Armendariz v INS, 222 F.3d

728 (9th Cir. 2000). The Ninth Circuit in Nunez-Reyes v. Holder, 646

F.3d 684 (9th Cir. 2011) (en banc) noted that eight other circuits and the

Board (in Matter of Salazar) disagreed with its holding in LujanArmendariz. The Ninth Circuit acknowledged that Congress had a

rational basis for distinguishing between expungement of federal and

state convictions. Nunez-Reyes applies prospectively only; thus, LujanArmendariz remains the controlling law for those aliens convicted before

the publication dated of Nunez-Reyes (July 14, 2011). Because LujanArmendariz still applies in some cases, the holding and case law is

summarized below.

(1) The court in Lujan-Armendariz specifically rejected the Board’s

decision in Matter of Roldan, 22 I&N Dec. 512 (BIA 1999), insofar

as that decision held that treatment under the Federal First

Offenders Act or state counterparts will not be given effect for

immigration purposes. Lujan-Armendariz v INS, 222 F.3d 728 (9th

Cir. 2000). The Ninth Circuit adopted the test set forth in Matter of

Manrique, 21 I&N Dec. 58 (BIA 1995), finding that an alien will

not be removable if he or she establishes that: (1) the alien has not

previously been convicted of violating any federal or state law

relating to controlled substances; (2) the alien has pled to or been

found guilty of the offense of simple possession of a controlled

substance; (3) the alien has not previously been accorded first

offender treatment under any law; and (4) the court entered an order

pursuant to a state rehabilitative statute under which the alien’s
page 258 of 365

criminal proceedings have been deferred pending successful

completion of probation. 

(2) The Board later held that Matter of Roldan, 22 I&N Dec. 512 (BIA

1999), will not be applied in cases arising within the jurisdiction of

the 9th Circuit, but everywhere else an alien whose adjudication of

guilt was deferred following a plea of guilty to possession of a

controlled substance is considered to have been convicted of the

offense. Matter of Salazar, 23 I&N Dec. 223 (BIA 2002).

(3) Lujan-Armendariz, is limited to controlled substances violations. 

See Matter of Marroquin-Garcia, 23 I&N Dec. 705 (A.G. 2005).

(4) The Ninth Circuit held that the crime of possession of drug

paraphernalia is a lesser offense than simple possession and thus

qualifies for FFOA treatment if expunged under state law.

Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000). See also

Ramirez-Altamirano v. Holder, 563 F.3d 800 (9th Cir. 2009),

superseding 554 F.3d 786 (9th Cir. 2009). Similarly, the court held

that an individual convicted for the first time in state court of using

or being under the influence of a controlled substance was eligible

for the same immigration treatment as individuals convicted of drug

possession under the FFOA. Rice v. Holder, 597 F.3d 952 (9th Cir.

2010), Nunez-Reyes v. Holder, 602 F.3d 1102 (9th Cir. 2010). 

(a) Relief under the Federal First Offender Act is unavailable

when an offender has violated a condition of probation. 

Estrada v. Holder, 560 F.3d 1039 (9th Cir. 2009). 

f. In all other cases, if a court vacates an alien’s conviction for reasons

solely related to rehabilitation or immigration hardships, rather than on

the basis of a procedural or substantive defect in the underlying criminal

proceedings, the conviction is not eliminated for immigration purposes.

Matter of Pickering, 23 I&N Dec. 621 (BIA 2003), rev’d on other

grounds, 454 F.3d 525 (6th Cir. 2006), amended and superseded, 465

F.3d 263 (6th Cir. 2006).

(1) In Renteria-Gonzales v. INS, 322 F.3d 804 (5th Cir. 2002), the Fifth

Circuit held that a conviction vacated on any grounds remains a

conviction under section 101(a)(48)(A). This holding contradicts

the Board’s ruling in Matter of Pickering. However, as practical

matter, the Matter of Pickering standard may still apply in the Fifth

Circuit. Specifically, the government has announced (in its

response to a petition for en banc review in a case involving a

vacated criminal conviction) that, in Fifth Circuit cases involving

vacated convictions, it will seek to remand to the Board for a ruling
page 259 of 365

under Matter of Pickering. See Gaona-Romero v. Gonzales, 497

F.3d 694 (5th Cir. 2007)

g. An alien seeking to reopen proceedings to establish that a conviction has

been vacated bears the burden of proving that the conviction was not

vacated solely for immigration purposes. Matter of Chavez, 24 I&N Dec.

272 (BIA 2007).

h. A conviction vacated pursuant to section 2943.031 of the Ohio Revised

Code for failure of the trial court to advise the alien defendant of the

possible immigration consequences of a guilty plea is no longer a valid

conviction for immigration purposes. Matter of Adamiak, 23 I&N Dec.

878 (BIA 2006). 

7. Reduction in sentence. A trial court’s decision to modify or reduce an alien’s

criminal sentence nunc pro tunc is entitled to full faith and credit by the IJ and

the Board. Such a modified or reduced sentence is recognized as valid for

purposes of the immigration law without regard to the trial court’s reasons for

effecting the modification or reduction. Matter of Cota-Vargas, 23 I&N Dec.

849 (BIA 2005), clarifying Matter of Song, 23 I&N Dec. 173 (BIA 2001) and

distinguishing Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). 

8. Naturalized citizen at time of conviction. The Board has held that a

denaturalized citizen who committed crimes while a lawful permanent resident

and concealed them during the naturalization process is removable on the basis

of the crimes, even though the alien was a naturalized citizen at the time of

conviction. Matter of Gonzalez-Munro, 24 I&N Dec. 472 (BIA 2008).

C. Judicial Recommendations Against Deportation (“JRADS”)

1. An amendment to the Act, made by the Immigration Act of 1990 and effective

on November 29, 1990, eliminated section 241(b)(2). Although the amendment

took effect on November 29, 1990, it applied to convictions entered before, on,

or after that date. There is no procedure for a recommendation against

deportation in the deportation provisions created by the Immigration Act of

1990. Therefore, it would seem that recommendations against deportation are

no longer available to aliens in deportation proceedings and that any

recommendations previously made would have no effect. 

a. The INS took the position that recommendations against deportation

granted before November 29, 1990 were still valid as a defense to

deportability. The Commissioner amended 8 C.F.R. § 242.16(c) [now

found at 8 C.F.R. §§ 1240.10(c) and 1240.48(c)] as of November 29,

1990 to provide the following:

(1) No recommendation against deportation is effective against a charge

of deportability under section 241(a)(11) of the Act.
page 260 of 365

(2) No recommendation against deportation granted on or after

November 29, 1990, is effective.

(3) The respondent shall provide a court-certified copy of a

recommendation against deportation to the IJ when the

recommendation will be the basis of denying any charge made by

the Service.

D. Juvenile delinquency

1. An act of juvenile delinquency is not a crime in the United States. Therefore,

an adjudication of delinquency is not a crime within the meaning of the

immigration laws. Matter of Ramirez-Rivero, 18 I&N Dec. 135 (BIA 1981);

Matter of C-M-, 5 I&N Dec. 327 (BIA 1953).

2. A juvenile delinquency proceeding results in the adjudication of a status rather

than conviction for a crime. An adjudication of youthful offender status

pursuant to Article 720 of the New York Criminal Procedure Law, which

corresponds to a determination of juvenile delinquency under the Federal

Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (1994 & Supp. II 1996),

does not constitute a judgment of conviction for a crime within the meaning of

section 101(a)(48)(A) of the Act. Matter of Devison, 22 I&N Dec. 1362 (BIA

2000).

3. Once a youthful offender determination has been made, that decision cannot be

changed as a consequence of the offender’s subsequent behavior. Therefore,

the resentencing of a youthful offender in New York following a violation of

probation does not convert the youthful offender adjudication into a judgment

of conviction. Matter of Devison, 22 I&N Dec. 1362 (BIA 2000).

4. Foreign convictions of juveniles. In order for a foreign conviction to serve as a

basis for a finding of inadmissibility, the conviction must be for conduct which

is deemed criminal by U.S. standards. Matter of McNaughton, 16 I&N Dec.

569 (BIA 1978), aff'd McNaughton v. INS, 612 F.2d 457 (9th Cir. 1980). 

a. Conduct underlying a foreign conviction which constitutes an act of

juvenile delinquency under U.S. standards (no matter how the case was

treated by a foreign court) is not a crime for purposes of the Act. Matter

of De La Nues, 18 I&N Dec. 140 (BIA 1981). 

b. In order to determine whether a foreign conviction is to be treated as an

adjudication of delinquency, the Board relies on the Federal Juvenile

Delinquency Act (FJDC), 18 U.S.C. § 5031 et seq.. Matter of RamirezRivero, 18 I&N Dec. 135 (BIA 1981); Matter of De La Nues, 18 I&N

Dec. 140 (BIA 1981). 
page 261 of 365

IX. Evidence

A. In general

1. Immigration proceedings are not bound by the strict rules of evidence. Dallo v.

INS, 765 F.2d 581 (6th Cir. 1985); Longoria-Castaneda v. INS, 548 F.2d 233

(8th Cir. 1977); Baliza v. INS, 709 F.2d 1231 (9th Cir. 1983); Matter of

Devera, 16 I&N Dec. 266 (BIA 1977).

2. The general rule with respect to evidence in immigration proceedings favors

admissibility as long as the evidence is shown to be probative of relevant

matters and its use is fundamentally fair so as not to deprive the alien of due

process of law. Tashnizi v. INS, 585 F.2d 781 (5th Cir. 1978); Baliza v. INS,

709 F.2d 1231 (9th Cir. 1983); Trias-Hernandez v. INS, 528 F.2d 366 (9th Cir.

1975); Marlowe v. INS, 457 F.2d 1314 (9th Cir. 1972); Matter of Toro, 17 I&N

Dec. 340 (BIA 1980); Matter of Lam, 14 I&N Dec. 168 (BIA 1972).

3. 8 C.F.R. § 1240.7(a) provides that an IJ “may receive in evidence any oral or

written statement which is material and relevant to any issue in the case

previously made by the respondent or any other person during any

investigation, examination, hearing, or trial.”

a. However, 8 C.F.R. § 1003.19(d) provides that consideration by an IJ of

an application or request regarding custody or bond shall be separate and

apart from, and shall form no part of, any deportation hearing or

proceeding. Therefore, it would seem that an IJ is precluded from

considering any evidence from a bond hearing in the course of a hearing

on deportability or relief from deportation unless, of course, the evidence

is reintroduced and received in the deportation hearing.

b. The opposite is not true, however. 8 C.F.R. § 1003.19(d) provides that

the determination of the IJ as to custody status or bond may be based

upon any information available to the IJ (such as information from the

deportation hearing) or that is presented during the bond hearing by the

respondent or the Service. When an IJ bases a bond determination on

evidence presented in the underlying merits case, it is the responsibility of

the parties and the IJ to ensure that the bond record establishes the nature

and substance of the specific factual information considered by the IJ in

reaching the bond determination. Matter of Adeniji, 22 I&N Dec. 1102

(BIA 1999).

4. Since the rules of evidence are not applicable and admissibility is favored, the

pertinent question regarding most evidence in immigration proceedings is not

whether or not it is admissible, but what weight the fact finder should accord it

in adjudicating the issues on which the evidence has been submitted.

B. Burden of proof and presumptions
page 262 of 365

1. In deportation proceedings.

a. The INS bears the burden to establish deportability. Deportability must

be established by evidence which is clear, convincing and unequivocal. 

Woodby v. INS, 385 U.S. 276 (1966).

(1) An exception to the “clear, convincing and unequivocal” standard

exists in deportation proceedings in which the alien is charged with

deportability pursuant to section 241(a)(9)(B) [now section

237(a)(1)(D)(i)] as an alien whose status as a conditional permanent

resident has been terminated under section 216(b) of the Act. 

section 216(b)(2) of the Act states that the INS bears the burden of

demonstrating “by a preponderance of the evidence” that a

condition described in section 216(b)(1)(A) is met. Matter of

Lemhammad, 20 I&N Dec. 316 (BIA 1991).

b. However, the burden is on the respondent to show the time, place, and

manner of entry. INA § 291. If this burden of proof is not sustained, the

respondent is presumed to be in the U. S. in violation of law. Id. In

presenting his proof, the respondent is entitled to the production of his

visa or other entry document, if any, and of any other documents and

records pertaining to his entry which are in the custody of the INS and not

considered confidential by the Attorney General. Id.

(1) This burden and presumption is applicable to any charge of

deportability which brings into question the time, place, and manner

of entry. Matter of Benitez, 19 I&N Dec. 173 (BIA 1984).

(a) The 9th Circuit disagrees and holds that the presumption of

section 291 applies only in cases involving illegal entry. Iran

v. INS, 656 F.2d 469 (9th Cir. 1981).

(2) Therefore, in a case in which the charge involves time, place, and

manner of entry, the INS's burden is often reduced to establishing

alienage.

(a) In deportation proceedings there is no presumption of

citizenship similar to the presumption of innocence which

exists in criminal cases. INS v. Lopez-Mendoza, 468 U.S.

1032 (1984).

(b) A person born abroad is presumed to be an alien until he or

she shows otherwise. United States ex rel. Rongetti v. Neelly,

207 F.2d 281 (7th Cir. 1953); Corona-Palomera v. INS, 661

F.2d 814 (9th Cir. 1981); Matter of Ponco, 15 I&N Dec. 120
page 263 of 365

(BIA 1974); Matter of Tijerina-Villarreal, 13 I&N Dec. 327

(BIA 1969); Matter of A-M-, 7 I&N Dec. 332 (BIA 1956).

(3) Although section 291 of the Act places the burden of proof on the

respondent to establish the time, place, and manner of entry, it

cannot serve as a basis on which to predicate a charge of

deportability, i.e. the respondent may not be charged under section

291 as an alien who has failed to establish the time, place, and

manner of entry. A charge of deportability must be under one of the

provisions of section 241 of the Act. Matter of Li, 12 I&N Dec. 293

(BIA 1967).

c. In applications for relief from deportation, the burden of proof is on the

respondent. If the evidence indicates that one or more of the grounds for

mandatory denial of the application for relief may apply, the alien has the

burden of proving by a preponderance of the evidence that such grounds

do not apply. 8 C.F.R. § 1240.8(d). 

2. In exclusion proceedings.

a. The burden of proof in exclusion proceedings is on the applicant to show

that he is not subject to exclusion under any provision of the Act. INA §

291.

(1) Except when the applicant has a “colorable” claim to status as a

returning resident. In that case the burden of proof to establish

excludability is on the INS. Matter of Kane, 15 I&N Dec. 258 (BIA

1975).

(a) The INS burden in such a case is to show by “clear,

unequivocal, and convincing evidence” that the applicant

should be deprived of LPR status. Matter of Huang, 19 I&N

Dec. 749 (BIA 1988).

(b) An alien “commuter” is not returning to an actual

unrelinquished permanent residence in the U.S., therefore he

is not entitled to a hearing at which the INS bears the burden

of proof. Matter of Moore, 13 I&N Dec. 711 (BIA 1971).

(c) If the LPR contends that exclusion proceedings are not proper

under the Fleuti doctrine, he bears the burden to prove that he

comes within the Fleuti exception to the entry definition. 

Molina v. Sewell, 983 F.2d 676 (5th Cir. 1993).

(2) In exclusion proceedings where the applicant has no “colorable

claim” to LPR status and alleges that exclusion proceedings are

improper because he made an entry and should therefore be in
page 264 of 365

deportation proceedings, the burden is on the applicant to show that

he has effected an entry. Matter of Z-, 20 I&N Dec. 707 (BIA

1993); Matter of Matelot, 18 I&N Dec. 334 (BIA 1982); Matter of

Phelisna, 18 I&N Dec. 272 (BIA 1982). In a case where there is no

clear evidence of the facts determinative of the entry issue, the case

ultimately must be resolved on where the burden of proof lies. 

Matter of G-, 20 I&N Dec. 764 (BIA 1993).

b. Under section 214(b) of the Act, every alien is presumed to be an

immigrant. The burden of proof is on the alien to establish nonimmigrant

status under section 101(a)(15) of the Act.

c. In cases in which the applicant bears the burden of proof, the burden of

proof never shifts and is always on the applicant. Matter of Rivero-Diaz,

12 I&N Dec. 475 (BIA 1967); Matter of M-, 3 I&N Dec. 777 (BIA 1949). 

Where the evidence is of equal probative weight, the party having the

burden of proof cannot prevail. Id.

(1) An applicant for admission to the U.S. as a citizen of the U.S. has

the burden of proving citizenship. Tillinghast v. Flynn ex rel. Chin

King, 38 F.2d 5 (1st Cir. 1930), cert. denied 281 U.S. 768 (1930);

Mah Ying Og v. Wixon, 124 F.2d 1015 (9th Cir. 1942); Lum Mon

Sing v. United States, 124 F.2d 21 (9th Cir. 1941); Matter of G-R-,

3 I&N Dec. 141 (BIA 1948).

(2) Once the applicant establishes that he was once a citizen and the

INS asserts that he lost that status, then the INS bears the burden of

proving expatriation. Id.

(3) The standard of proof to establish expatriation is less than the

“clear, unequivocal, and convincing” evidence test as applied in

denaturalization cases but more than a mere preponderance of

evidence. The proof must be strict and exact. Id.

3. In rescission proceedings.

a. In rescission proceedings the burden of proof is on the INS.

b. The burden is “clear, convincing, and unequivocal evidence.” Waziri v.

INS, 392 F.2d 55 (9th Cir. 1968); Matter of Vilanova-Gonzalez, 13 I&N

Dec. 399 (BIA 1969) .

c. This is the same burden as the INS bears in deportation proceedings.

4. In removal proceedings involving arriving aliens or aliens alleged to be present

in the U.S. without being admitted or paroled.
page 265 of 365

a. If the alien is an applicant for admission, the alien has the burden of

establishing that he is clearly and beyond doubt entitled to be admitted

and is not inadmissible under section 212 or by clear and convincing

evidence, that he is lawfully present in the U.S. pursuant to a prior

admission. INA § 240(c)(2). In meeting the burden that he is lawfully

present in the U.S., the alien shall have access to the alien's visa or other

entry document, if any and any other records and documents, not

considered by the Attorney General to be confidential, pertaining to the

alien's admission or presence in the U.S. Id.

b. The Government has the burden of proof to show that an applicant with a

“colorable” claim to status as a returning resident should be deprived of

LPR status. Katebi v. Ashcroft, 396 F.3d 463 (1st Cir. 2005); Singh v.

Reno, 113 F.3d 1512 (9th Cir. 1997).

5. In removal proceedings involving aliens who have been admitted.

a. In the case of an alien who has been admitted to the U.S., the Service has

the burden of establishing by clear and convincing evidence that the alien

is deportable. No decision on deportability shall be valid unless it is

based upon reasonable, substantial, and probative evidence. INA §

240(c)(3).

b. However, it is the alien’s burden of proof to establish by clear and

convincing evidence that he is lawfully in the United States pursuant to a

prior admission. INA § 240(c)(2)(B).

C. Documents.

1. Certification.

a. Domestic documents.

(1) 8 C.F.R. § 1287.6(a) provides that an official record, when

admissible for any purpose, shall be evidenced by an official

publication thereof, or by a copy attested by the official having legal

custody of the record or by an authorized deputy.

(2) Proof of criminal convictions. Section 240(c)(3)(B) of the Act and 8

C.F.R. § 1003.41(a) provide that in any proceeding under the Act,

any of the following documents or records (or a certified copy of

such an official document or record) shall constitute proof of a

criminal conviction:

(a) An official record of judgment and conviction;

(b) An official record of plea, verdict, and sentence;
page 266 of 365

(c) A docket entry from court records that indicates the existence

of the conviction;

(d) Official minutes of a court proceeding or a transcript of a court

hearing that indicates the existence of the conviction;

(e) An abstract of a record of conviction prepared by the court in

which the conviction was entered or by a State official

associated with the State's repository of criminal justice

records which indicates the charge or section of law violated,

the disposition of the case, the existence and date of

conviction, and the sentence;

(f) Any document or record prepared by, or under the direction

of, the court in which the conviction was entered that indicates

the existence of a conviction; 

(g) Any document or record attesting to the conviction that is

maintained by an official of a State or Federal penal

institution, which is the basis for that institution's authority to

assume custody of the individual named in the record.

(3) 8 C.F.R. § 1003.41(b) provides that any document or record listed

in 8 C.F.R. § 1003.41(a) may be submitted if:

(a) it complies with the provisions of 8 C.F.R. § 287.6(a), i.e.

attested by the custodian of the document or his authorized

deputy, or

(b) it is attested by an immigration officer to be a true and correct

copy of the original.

(4) Section 240(c)(3)(C) and 8 C.F.R. § 1003.41(c) provide that any

record of conviction or abstract submitted by electronic means to

the Service from a state or court shall be admissible as evidence to

prove a criminal conviction if:

(a) it is certified by a state official associated with the state's

repository of criminal justice records as an official record from

its repository or by a court official from the court in which

conviction was entered as an official record from its repository

(section 240(c)(3)(C) and 8 C.F.R. § 1003.41(c)(1) provide

that the certification may be by means of a computergenerated signature and statement of authenticity) and
page 267 of 365

(b) it is certified in writing by a Service official as having been

received electronically from the state's record repository or the

court's record repository.

(5) 8 C.F.R. § 1003.41(d) provides that any other evidence that

reasonably indicates the existence of a criminal conviction may be

admissible as evidence thereof.

b. Foreign documents.

(1) Documents from Canada. 8 C.F.R. § 1287.6(d) provides that an

official record or entry therein issued by a Canadian government

entity within the geographical boundaries of Canada, when

admissible for any purpose, shall be evidenced by a certified copy of

the original record attested by the official having legal custody of

the record or by an authorized deputy.

(2) Documents from countries signatory to the Convention Abolishing

the Requirement of Legislation for Foreign Public Document.

(a) 8 C.F.R. § 1287.6(c) provides that a public document or entry

therein, when admissible for any purpose, may be evidenced

by an official publication or by a copy properly certified under

the Convention.

(b) No certification is needed from an officer in the Foreign

Service of public documents. 8 C.F.R. § 1287.6(c)(2). But to

be properly certified, the copy must be accompanied by a

certificate in the form dictated by the Convention. This

certificate must be signed by a foreign officer so authorized by

the signatory country and it must certify (1) the authenticity of

the signature of the person signing the document, (2) the

capacity in which that person acted, and (3) where appropriate,

the identity of the seal or stamp the document bears.

(c) 8 C.F.R.§ 1287.6(c)(3) provides that in accordance with the

Convention, the following documents are deemed to be public

documents:

i) documents emanating from an authority or an official

connected with the courts or tribunals of the state,

including those emanating from a public prosecutor, a

clerk of a court, or a process server;

ii) administrative documents;

iii) notarial acts;
page 268 of 365

iv) official certificates which are placed on documents

signed by persons in their private capacity, such as

official certificates recording the registration of a

document or the fact that it was in existence on a certain

date, and official and notarial authentication of

signatures.

(d) 8 C.F.R. § 1287.6(c)(4) provides that in accordance with the

Convention, the following documents are deemed not to be

public documents and are subject to the more stringent

requirements of 8 C.F.R. § 1287.6(b):

i) documents executed by diplomatic or consular agents;

ii) administrative documents dealing directly with

commercial or customs operations.

(3) Documents from countries not signatory to the Convention.

(a) 8 C.F.R. § 1287.6(b) provides that an official record or entry

therein, when admissible for any purpose, shall be evidenced

by an official publication thereof, or by a copy attested by an

officer so authorized; 8 C.F.R. § 1287.6(b)(1). This attested

copy, with the additional foreign certificates if any, must be

certified by an officer in the Foreign Service of the U.S.,

stationed in the country where the record is kept. 8 C.F.R. §

1287.6(b)(2). The Foreign Service officer must certify the

genuineness of the signature and the official position either of

either:

i) the attesting officer, or

ii) any foreign officer whose certification of genuineness of

signature and official position relates directly to the

attestation or is in a chain of certificates of genuineness

of signature and official position relating to the

attestation. (8 C.F.R. § 1287.6(a)(1) provides that the

copy attested by an authorized foreign officer may, but

need not, be certified in turn by any authorized foreign

officer both as to the genuineness of the signature of the

attesting officer and as to his/her official position. The

signature and official position of this certifying officer

may then likewise be certified by any other foreign

officer so authorized, thereby creating a chain of

certificates. In that situation, the officer of the Foreign
page 269 of 365

Service of the U.S. may certify any signature in the

chain.)

2. Translation. 8 C.F.R. § 1003.33 provides that any foreign language document

offered by a party in a proceeding shall be accompanied by an English language

translation and a certification signed by the translator that must be printed

legibly or typed. Such certification must include a statement that the translator

is competent to translate the document and that the translation is true and

accurate to the best of the translator's abilities.

3. Service. 8 C.F.R. § 1003.32(a) provides that, except in absentia hearings, a

copy of all documents (including proposed exhibits or applications) filed with

or presented to the IJ shall be simultaneously served by the presenting party on

the opposing party or parties.

a. Service of copies shall be in person or by first class mail to the most

recent address contained in the ROP. 8 C.F.R. § 1003.32(a).

b. Any documents or applications not containing a certificate certifying

service on the opposing party on a date certain will not be considered by

the IJ unless service is made on the record during a hearing. 8 C.F.R. §

1003.32(a).

4. Size and format of documents

a. Unless otherwise permitted by the IJ, all written material presented to

IJs must be on 8 1⁄2" x 11" size paper. 8 C.F.R. § 1003.32(b).

b. An IJ may require that exhibits or other written material presented be

indexed and paginated and that a table of contents be provided. 8 C.F.R.

§ 1003.32(b).

5. Presumption of regularity of Government documents. The Board held that

government documents are entitled to a presumption of regularity. Matter of

P-N-, 8 I&N Dec. 456 (BIA 1959).

6. Similarity of names. When documentary evidence bears a name identical to

that of the respondent, an IJ may reasonably infer that such evidence relates

to the respondent in the absence of evidence that it does not relate to him. 

United States v. Rebon-Delgado, 467 F.2d 11 (9th Cir. 1972); Matter of

Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980); Matter of Leyva, 16 I&N

Dec. 118 (BIA 1977); Matter of Li, 15 I&N Dec. 514 (BIA 1975); Matter of

Cheung, 13 I&N Dec. 794 (BIA 1971).

7. Cases regarding specific documents.

a. Form I-213, Record of Deportable/Inadmissible Alien.
page 270 of 365

(1) Absent proof that a form I-213 contains information that is

incorrect or was obtained by coercion or duress, that document is

inherently trustworthy and admissible as evidence to prove

alienage and deportability. Matter of Barcenas, 19 I&N Dec. 609

(BIA 1988); Matter of Mejia, 16 I&N Dec. 6 (BIA 1976).

(2) In fact, the document would be admissible even under the Federal

Rules of Evidence as an exception to the hearsay rule as a public

record or report. Matter of Mejia, 16 I&N Dec. 6 (BIA 1976).

(3) A form I-213 is admissible and ordinarily sufficient “for a prima

facie case of deportability,” whereupon the “burden shifts to the

alien to prove that he is here legally” under section 291 of the Act. 

Bustos-Torres v. INS, 898 F.2d 1053, 1057 (5th Cir. 1990); see

also Espinoza v. INS, 45 F.3d 308 (9th Cir. 1995); Matter of

Benitez, 19 I&N Dec. 173 (BIA 1984).

(4) The Immigration and Naturalization Service met its burden, in an

in absentia removal proceeding, of establishing a minor

respondent’s removability by clear, unequivocal, and convincing

evidence, where (1) a Record of Deportable/Inadmissible Alien

(Form I-213) was submitted, documenting the respondent’s

identity and alienage; (2) the respondent, who failed without good

cause to appear at her removal hearing, made no challenge to the

admissibility of the Form I-213; (3) there were no grounds for a

finding that the admission of the Form I-213 would be

fundamentally unfair; and (4) no independent evidence in the

record supported the IJ’s conclusion that the respondent may not

have been the child of the adult who claimed to be the

respondent’s parent and who furnished the information regarding

her foreign citizenship; Matter of Gomez-Gomez, 23 I&N Dec.

522 (BIA 2002); see also Matter of Ponce-Hernandez, 22 I&N

Dec. 784 (BIA 1999).

b. Sworn statement by respondent. Where an alien in deportation

proceedings admits his name and then stands mute, his sworn statement

may be relied upon as evidence of deportability and need not be

identified by the officer to whom the statement was made although it

represented the sole evidence of deportability other than the inference to

be drawn from the alien’s silence. Matter of P-, 7 I&N Dec. 133 (BIA

1956); Matter of V-, 7 I&N Dec. 308 (BIA 1956).

c. Form I-130, visa petition. A form I-130 and accompanying documents

(birth certificate, marriage certificate, etc.) are admissible, even without

identification of the I-130 by its maker, if there is an identity of name
page 271 of 365

with the name of the respondent. Matter of Gonzalez, 16 I&N Dec. 44

(BIA 1976).

d. Police reports. Inasmuch as all relevant factors regarding an alien's

arrest and conviction should be considered in cases involving

discretionary relief, police reports concerning circumstances of arrest

are appropriately admitted into evidence. Matter of Grijalva, 19 I&N

Dec. 713 (BIA 1988); Matter of Thomas, 21 I&N Dec. 20 (BIA 1995).

Since the question posed in an application for discretionary relief is

whether a favorable exercise of discretion is warranted, a police report

may be helpful in answering that question because it bears on the issue

of the alien's conduct where he was arrested and this in turn is germane

to whether he merits discretionary relief. Matter of Teixeira, 21 I&N

Dec. 316 (BIA 1996). However, a police report should not be

considered for the purpose of determining deportability where the

statute mandates a focus on a criminal conviction, rather than on

conduct. Id.

e. Admissions made by counsel. Absent egregious circumstances, a

distinct and formal admission made before, during, or even after a

proceeding by an attorney acting in his professional capacity binds his

client as a judicial admission. Matter of Velasquez, 19 I&N Dec. 377

(BIA 1986). Thus, when an admission (of deportability) is made as a

tactical decision by an attorney in a deportation proceeding, the

admission is binding on his alien client and may be relied upon as

evidence of deportability. Id. There is a strong presumption that an

attorney's decision to concede an alien's deportability in a motion for

change of venue was a reasonable tactical decision, and, absent a

showing of egregious circumstances, such a concession is binding upon

the alien as an admission. Id. It is immaterial whether an alien actually

authorized his attorney to concede deportability in a motion to change

venue, for so long as the motion was prepared and filed by an attorney

on behalf of his alien client, it is prima facie regarded as authorized by

the alien and is admissible as evidence. Id. An allegation that an

attorney was authorized to represent an alien only to the extent

necessary to secure a reduction in the amount of bond does not render

inadmissible the attorney's concession of deportability in a pleading

filed in regard to another matter (a motion for change of venue filed in

the deportation hearing) for there is no “limited” appearance of counsel

in immigration proceedings. Id.

f. State Department reports of investigations. Reliance on reports of

investigations that do not provide sufficient information about how the

investigation was conducted are fundamentally unfair because, without

that information, it is nearly impossible for the immigration court to

assess the report's probative value and the asylum applicant is not

allowed a meaningful opportunity to rebut the investigation’s
page 272 of 365

allegations. See Anim v. Mukasey, 535 F.3d 243, 257 (4th Cir. 2008);

Banat v. Holder, 557 F.3d 886 (8th Cir. 2009). “The Department of

Justice itself has recognized the need for a detailed [investigation]

report.” Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 270 (2d Cir. 2006). 

D. Testimony

1. Calling the alien to testify

a. The INS may call the respondent as a witness to establish deportability. 

Requiring the respondent to testify does not violate due process, absent

a claim of self-incrimination. Matter of Laqui, 13 I&N Dec. 232 (BIA

1969), aff’d Laqui v. INS, 422 F.2d 807 (7th Cir. 1970).

b. A valid claim to privilege against compulsory self-incrimination under

the 5th amendment may be raised only as to questions that present a real

and substantial danger of self-incrimination. Marchetti v. United

States, 390 U.S. 39 (1968). Therefore, an IJ does not err in compelling

non-incriminating testimony. Chavez-Raya v. INS, 519 F.2d 397 (7th

Cir. 1975); Wall v. INS, 722 F.2d 1442 (9th Cir. 1984); Matter of

Santos, 19 I&N Dec. 105, 109 n.2 (BIA 1984) (no crime is implicated

when a nonimmigrant overstays his allotted time of admission).

c. Neither the IJ nor the Trial Attorney is in a position to offer immunity

from criminal prosecution. This is an action which can only be

authorized by the Attorney General or certain officials designated by

him. Matter of Carrillo, 17 I&N Dec. 30 (BIA 1979); Matter of King

and Yang, 16 I&N Dec. 502 (BIA 1978); Matter of Exantus and Pierre,

16 I&N Dec. 382 (BIA 1977).

2. Refusal by the alien to testify

a. On the issue of deportability

(1) Refusal to testify without legal justification in deportation

proceedings concerning the questions of alienage, time, place, and

manner of entry is reliable, substantial, and probative evidence

supporting a finding of deportability. Matter of Pang, 11 I&N

Dec. 489 (BIA 1966), aff’d Ah Chiu Pang v. INS, 368 F.2d 637

(3d Cir. 1966); Matter of R-S-, 7 I&N Dec. 271 (BIA 1956, A.G.

1956).

(2) It is also proper to draw an unfavorable inference from refusal to

answer pertinent questions where such refusal is based upon a

permissible claim of privilege as well as where privilege is not a

factor. Matter of O-, 6 I&N Dec. 246 (BIA 1954). The

prohibition against the drawing of an unfavorable inference from a
page 273 of 365

claim of privilege arises in criminal proceedings, not civil

proceedings. Id. The logical conclusion to be drawn from the

silence of one who claims his answers may subject him to

possible prosecution or punishment is that the testimony withheld

would be adverse to the interests of the person claiming privilege. 

Id. Even if the refusal to testify is based on the 5th Amendment

privilege against self-incrimination, the refusal forms the basis of

an inference and such inference is evidence. United States v.

Alderete-Deras, 743 F.2d 645 (9th Cir. 1984); Matter of M-, 8

I&N Dec. 535 (BIA 1960); Matter of P-, 7 I&N Dec. 133 (BIA

1956); Matter of V-, 7 I&N Dec. 308 (BIA 1956).

(3) Although it is proper to draw an unfavorable inference from a

respondent's refusal to answer pertinent questions, the inference

may only be drawn after a prima facie case of deportability has

been established. Matter of J-, 8 I&N Dec. 568 (BIA 1960);

Matter of O-, 6 I&N Dec. 246 (BIA 1954). In deportation

proceedings, the respondent's silence alone, in the absence of any

other evidence of record, is insufficient to constitute prima facie

evidence of the respondent's alienage and is therefore also

insufficient to establish the respondent's deportability. Matter of

Guevara, 20 I&N Dec. 238 (BIA 1991). Also, the record should

show that the respondent was requested to give testimony, that

there was a refusal to testify, and the ground of refusal. Matter of

J-, 8 I&N Dec. 568 (BIA 1960).

b. On the issue of relief

(1) In the case of an alien who refused to answer the questions of a

congressional committee on the grounds that the answers might

incriminate him, the Board held that it might well be inferred that

what would be revealed by the answers to such questions would

not add to the alien's desirability as a resident. Therefore, he was

found not to be a desirable resident of the U.S. and his application

for suspension of deportation was denied as a matter of discretion. 

Matter of M-, 5 I&N Dec. 261 (BIA 1953).

(2) An applicant for the exercise of discretion has the duty of making

a full disclosure of all pertinent information. If, under a claim of

privilege against self-incrimination pursuant to the 5th

amendment, an applicant refuses to testify concerning prior false

claims to U.S. citizenship, denial of his application is justified on

the ground that he has failed to meet the burden of proving his

fitness for relief. Matter of Y-, 7 I&N Dec. 697 (BIA 1958).

(3) A respondent's refusal to answer questions pertaining to his

application for voluntary departure prevented a full examination
page 274 of 365

of his statutory (or discretionary, depending on the questions)

eligibility for the relief sought and such relief is properly denied. 

Matter of Li, 15 I&N Dec. 514 (BIA 1975). Since the grant of

voluntary departure is a matter of discretion and administrative

grace, a respondent's refusal to answer questions directed to him

bearing on his application for voluntary departure is a factor

which an IJ may consider in the exercise of discretion. Matter of

Mariani, 11 I&N Dec. 210 (BIA 1965). The same applies to an

application for registry under section 249 of the Act. Matter of

DeLucia, 11 I&N Dec. 565 (BIA 1966).

(4) An alien seeking a favorable exercise of discretion cannot limit

the inquiry to the favorable aspects of the case and reserve the

right to be silent on the unfavorable aspects. Matter of DeLucia,

11 I&N Dec. 565 (BIA 1966); Matter of Y-, 7 I&N Dec. 697 (BIA

1958).

(5) A respondent has every right to assert his 5th Amendment

privilege against self-incrimination. However, as an applicant for

adjustment of status, he also is required to provide information

relevant to the exercise of discretion. In refusing to disclose such

information, the respondent prevents an IJ from reaching a

conclusion as to the respondent's entitlement to section 245 relief. 

Therefore, the respondent has failed to sustain the burden of

establishing that he is entitled to the privilege of adjustment of

status and his application is properly denied. Matter of Marques,

16 I&N Dec. 314 (BIA 1977).

E. Hearsay

1. Hearsay evidence is admissible in deportation proceedings unless its use is

fundamentally unfair to an alien. Matter of Grijalva, 19 I&N Dec. 713 (BIA

1988).

2. Hearsay evidence may be admitted and relied upon in administrative

hearings. Therefore, the finder of fact in an administrative adjudication may

consider relevant and material hearsay. Richardson v. Perales, 402 U.S. 389

(1971).

3. Hearsay evidence is not only admissible, but may be relied on, even if

contradicted by direct evidence. Richardson v. Perales, 402 U.S. 389 (1971);

Calhoun v. Bailar, 626 F.2d 145 (9th Cir. 1980).

F. Evidence from an application to adjust an alien’s status to that of a lawful

temporary resident under section 210 of the Act
page 275 of 365

1. Information provided in an application to adjust an alien’s status to that of a

lawful temporary resident under section 210 of the Act is confidential and

prohibited from use in rescission proceedings under section 246 of the Act, or

for any purpose other than to make a determination on an application for

lawful temporary residence, to terminate such temporary residence, or to

prosecute the alien for fraud during the time of application. Matter of Masri,

22 I&N Dec. 1145 (BIA 1999).

G. The exclusionary rule in immigration proceedings and motions to suppress

1. Burdens

a. Whenever an alien in removal proceedings questions the legality of

evidence, he must provide proof establishing a prima facie case that the

DHS’s evidence was unlawfully obtained before the burden will shift to

the DHS to justify the manner in which it obtained the evidence. Matter

of Wong, 13 I&N Dec. 820, 822 (BIA 1971); Matter of Barcenas, 19

I&N Dec. 609, 611 (BIA 1988). The motion to suppress must

enumerate the articles to be suppressed. Wong, 13 I&N Dec. at 822.

The motion must be supported by an affidavit containing specific and

detailed statements based on personal knowledge. Matter of RamirezSanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter of Tang, 13 I&N

Dec. 691 (BIA 1971). The mere offering of an affidavit is not sufficient

to sustain an alien’s burden, but if the affidavit is such that the facts

alleged, if true, could support a basis for excluding the evidence, then

the claims must be supported by testimony to establish a prima facie

case. Barcenas, 19 I&N Dec. at 611. At the suppression hearing, the

alien must present testimony supporting his or her case for the illegality

of the DHS’s conduct. Id. If the alien satisfies this burden, DHS will be

called upon to justify the manner in which it obtained the evidence.

Wong, 13 I&N Dec. at 822. If DHS fails to do so, the evidence must be

suppressed. Id.

2. Invoking the Fifth Amendment Privilege Against Self-Incrimination

a. The Fifth Amendment privilege against self-incrimination “applies

alike to civil and criminal proceedings, wherever the answer might tend

to subject to criminal responsibility him who gives it.” McCarthy v.

Arndstein, 266 U.S. 34, 40 (1924).

(1) Section 275(a) of the Act, 8 U.S.C. § 1325(a), provides that it is a

crime for an alien to enter the United States without inspection.

b. A Fifth Amendment privilege against self-incrimination must be

asserted on a question-by-question basis, and, as to each question asked,

the party has to decide whether or not to raise his Fifth Amendment
page 276 of 365

right. See, e.g., Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1019 (9th

Cir. 2006).

c. See pages 272-274 above for discussion on refusal to testify.

3. Grounds for Suppression: Fourth and Fifth Amendment Violations,

Regulatory Violations

a. Fourth Amendment

(1) Generally, the exclusionary rule does not apply in removal

proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

However, the exclusionary rule may apply where there are

“egregious violations of the Fourth Amendment or other liberties

that might transgress notions of fundamental fairness and

undermine the probative value of the evidence obtained” or if

“there developed good reason to believe that Fourth Amendment

violations by INS officers were widespread.” Id. at 1050-51. See

Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980) (finding that

circumstances surrounding an arrest and interrogation in violation

of Fourth Amendment may result in evidence, the admission of

which would be fundamentally unfair and violate the Due Process

Clause of the Fifth Amendment).

(2) Seizure

(a) “[A]n initially consensual encounter between a police officer

and a citizen can be transformed into a seizure or detention

within the meaning of the Fourth Amendment, ‘if, in view of

all the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.’” 

INS v. Delgado, 466 U.S. 210, 215 (1984) (quoting United

States v. Mendenhall, 446 U.S. 544, 554 (1980). Where an

individual’s freedom of movement is restricted by a factor

independent of law enforcement conduct, such as being a

passenger on a bus, the proper analysis is “whether a

reasonable person would feel free to decline the officers’

requests or otherwise terminate the encounter.” Florida v.

Bostick, 501 U.S. 429, 436 (1991). “Examples of

circumstances that might indicate a seizure, even where the

person did not attempt to leave, would be the threatening

presence of several officers, the display of a weapon by an

officer, some physical touching of the person of the citizen,

or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.”

Mendenhall, 446 U.S. at 554. “[W]henever a police officer

accosts an individual and restrains his freedom to walk
page 277 of 365

away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S.

1, 16 (1968). A request for identification does not, by itself,

constitute a seizure. Delgado, 466 U.S. at 216. 

(3) Violation of Fourth Amendment

(a) To lawfully stop a person, the officer must have a reasonable

suspicion that the person is unlawfully present in the United

States and must be able to articulate objective facts to

support that suspicion. United States v. Brignoni-Ponce, 422

U.S. 873, 887 (1975); Orhorhaghe v. INS, 38 F.3d 488, 497

(9th Cir. 1994).

i) Proximity to the border and the suspect’s behavior may

be considered. United States v. Garcia-Barron, 116

F.3d 1305, 1308 (9th Cir. 1997); United States v.

Tehrani, 49 F.3d 54 (2d Cir. 1995).

ii) Speaking a foreign language may be considered along

with the person’s inability to speak English, but that

factor alone will not justify a stop. United States v.

Manzo-Jurado, 457 F.3d 928, 937 (9th Cir. 2006).

iii) Race and appearance may be considered as a factor,

but that factor alone does not give rise to a reasonable

suspicion of unlawful presence. United States v.

Brignoni-Ponce, 422 U.S. 873, 884 (1975).

iv) Nervous or evasive behavior may be considered.

Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Flight

from law enforcement officers, standing alone,

provides a reasonable suspicion of illegal activity. Id.

at 124-25.

v) Failure to acknowledge a law enforcement officer may

be considered as a factor. United States v. Arvizu, 534

U.S. 266, 275-76 (2002).

(b) To lawfully execute a warrantless arrest, the officer must

have a reason to believe that the person is unlawfully present

in the United States and that the individual is likely to

escape before a warrant can be obtained. See INA §

287(a)(2); 8 U.S.C. § 1357(a)(2). 

i) A standard of proof which relies on reasonable belief

may be equated to a probable cause standard. See

Maryland v. Pringle, 540 U.S. 366, 371 (2003); Matter
page 278 of 365

of A-H-, 23 I&N Dec. 774, 788 (A.G. 2005). Probable

cause exists where a combination of facts exist which

are sufficient to create a reasonable belief that a

violation of law has occurred. Wong Sun v. United

States, 371 U.S. 471, 479 (1963) (quoting Carroll v.

United States, 267 U.S. 132, 162 (1925)).

(4) Standards for an Egregious Violation of the Fourth Amendment

(a) Second & Eighth Circuits: An egregious violation exists

where (1) the violation transgressed notions of fundamental

fairness or (2) the violation - regardless of the egregiousness

or unfairness - undermined the probative value of the

evidence obtained. Almeida-Amaral v. Gonzales, 461 F.3d

231, 234-35 (2d Cir. 2006) (citing INS v. Lopez-Mendoza,

468 U.S. 1032 (1984)); Puc-Ruiz v. Holder, 629 F.3d 771,

778 (8th Cir. 2010).

i) A violation transgresses the notions of fundamental

fairness when the violating conduct is gross or

unreasonable in addition to being without a plausible

legal ground. Almeida-Amaral, 461 F.3d at 235.

ii) Factors to consider include the length of the illegal

stop, whether there was a use or show of force,

whether the stop was based on race or some other

grossly improper consideration, or whether the officers

invaded private property and detained individuals with

no articulable suspicion whatsoever. Almeida-Amaral,

461 F.3d at 235; Puc-Ruiz, 629 F.3d at 779.

(b) Ninth Circuit: An egregious violation of the Fourth

Amendment occurs where the violation is a bad faith

violation. Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 n.5

(9th Cir. 1994). 

i) A bad faith violation occurs where evidence is

obtained (1) by a deliberate violation of the Fourth

Amendment or (2) by conduct a reasonable officer

should have known is in violation of the Constitution.

Id. at 1449 (quoting Adamson v. Comm’r, 745 F.2d

541, 545 (9th Cir. 1984)). See Martinez-Medina v.

Holder, --- F.3d ----, No. 06-75778, 2011 WL 855791,

at *5 (9th Cir. Mar. 11, 2011).

(c) Cases finding egregiousness: Lopez-Rodriguez v. Mukasey,

536 F.3d 1012, 1018 (9th Cir. 2008) (nonconsensual
page 279 of 365

warrantless entry into home); Orhorhaghe v. INS, 38 F.3d

488, 493-94 (9th Cir. 1994) (nonconsensual warrantless

search based on alien’s foreign-sounding name).

(d) Cases not finding egregiousness: Melnitsenko v. Mukasey,

517 F.3d 42 (2d Cir. 2008) (three hour detention at

checkpoint near border); Almeida-Amaral v. Gonzales, 461

F.3d 231, 236-37 (2d Cir. 2006) (arrest after displaying

Brazilian passport as form of identification); Puc-Ruiz v.

Holder, 629 F.3d 771, 777-79 (8th Cir. 2010) (warrantless

arrest by local police during search of restaurant in violation

of municipal ordinance); Martinez-Medina v. Holder, ---

F.3d ----, No. 06-75778, 2011 WL 855791 at *5 (9th Cir.

Mar. 11, 2011) (warrantless arrest by local police based on

alien’s admitted unlawful status).

b. Fifth Amendment 

(1) The Due Process Clause of the Fifth Amendment entitles noncitizens to fair removal proceedings and mandates that evidence

be used in a fundamentally fair manner. See Bridges v. Wixon,

326 U.S. 135, 154 (1945); United States ex rel. Vajtauer v.

Comm’r, 273 U.S. 103, 106 (1927); Matter of Toro, 17 I&N Dec.

340, 343 (BIA 1980). Evidence obtained in violation of the Due

Process Clause is suppressible. See Matter of Sandoval, 17 I&N

Dec. 70, 83 n.23 (BIA 1979) (citing Tashnizi v. INS, 585 F.2d

781 (5th Cir. 1978)); Valeros v. INS, 387 F.2d 921 (7th Cir.

1967); Navia-Duran v. INS, 568 F.2d 803 (1st Cir. 1977),

superseded on other grounds by statute as recognized in SamayoaMartinez v. Holder, 558 F.3d 897 (9th Cir. 2009); Bong Youn

Choy v. Barber, 279 F.2d 642 (9th Cir. 1960)).

(2) Due process requires that statements which are coerced or

involuntarily given be excluded from the record. Matter of Garcia,

17 I&N Dec. 319, 321 (BIA 1980); Navia-Duran v. INS, 568 F.2d

803, 811 (1st Cir. 1977); Singh v. Mukasey, 553 F.3d 207, 214-16

(2d Cir. 2009).

(a) Where the immigration officer fails to provide the advisals

at 8 C.F.R. § 287.3(c), such a failure is a factor to consider

in determining whether the alien’s statements were

involuntarily given. Matter of Garcia, 17 I&N Dec. 319, 321

(BIA 1980); Navia-Duran v. INS, 568 F.2d 803, 811 (1st

Cir. 1977); Sing v. Mukasey, 553 F.3d 207, 214-16 (2d Cir.

2009). However, a failure to provide the advisals would not

render an otherwise voluntary statement inadmissible.

Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004).
page 280 of 365

It should be noted that the above cases addressed 8 C.F.R. §

287.3(c) before Matter of E-R-M-F- & A-S-M-, 25 I&N

Dec. 580 (BIA 2011) made clear that the advisals are not

required to be given until the NTA is filed.

 

(b) Interference with an individual’s exercise of the right to

counsel will render a statement involuntary. Matter of

Garcia, 17 I&N Dec. 319, 321 (BIA 1980).

(3) 8 C.F.R. § 287.8(c)(2)(vii) prohibits immigration officers from

using threats, coercion, or physical abuse to induce a suspect to

waive his or her rights or to make a statement. Therefore,

statements obtained through coercion should be suppressed as a

regulatory violation as well as a Fifth Amendment violation.

(4) Factual scenarios to consider generally.

(a) Denial of food or drink. Mineo v. INS, 19 F.3d 11 (4th Cir.

1994) (unpublished).

(b) Threats of inevitable deportation or promised preferential

treatment. Navia-Duran, 568 F.2d 803 (1st Cir. 1977).

(c) Length and time of day of the interrogation. Navia-Duran,

568 F.2d at 804, 810.

c. Regulations

(1) Evidence obtained in violation of federal regulations may also be

suppressed if (1) the violated regulation is promulgated to serve “a

purpose of benefit to the alien” and (2) the violation “prejudiced

interests of the alien which were protected by the regulation.”

Matter of Garcia-Flores, 17 I&N Dec. 325, 328 (BIA 1980). But

see Montilla v. INS, 926 F.2d 162 (2d Cir. 1991).

(a) To demonstrate prejudice, the alien must establish that the

outcome of the case would be different if the regulatory

provision had not been violated. Martinez-Camargo, 282

F.3d 487, 492 (7th Cir. 2002).

(b) Prejudice is presumed where (1) compliance with the

regulation is mandated by the Constitution or (2) a

procedural framework designed to ensure the fair processing

of an action affecting an individual is created, but not

followed by an agency. Garcia-Flores, 17 I&N Dec. at 329.

See Leslie v. Att’y Gen., 611 F.3d 171, 178 (3d Cir. 2010).
page 281 of 365

(2) Relevant Regulatory Provisions

(a) Interrogation - “An immigration officer, like any other

person, has the right to ask questions of anyone as long as

the immigration officer does not restrain the freedom of an

individual, not under arrest, to walk away.” 8 C.F.R. §

287.8(b)(1). See INA § 287(a)(1). Section 287(a)(1) of the

act requires that immigration officers possess a “reasonable

suspicion of alienage” before questioning individuals about

their immigration status, even where the individuals are not

being detained. Matter of King and Yang, 16 I&N Dec. 502,

504-05 (BIA 1978).

(b) Brief Detentions - “If the immigration officer has a

reasonable suspicion, based on specific articulable facts, that

the person being questioned is, or is attempting to be,

engaged in an offense against the United States or is an alien

illegally in the United States, the immigration officer may

briefly detain the person for questioning.” 8 C.F.R. §

287.8(b)(2). 

(c) Arrests - An immigration officer authorized by 8 C.F.R. §

287.5(c)(1) has the power to arrest aliens for immigration

violations. See INA § 287(a)(2). An officer may arrest a

person only when he has reason to believe that the person to

be arrested has committed an offense against the United

States or is an alien illegally in the United States. 8 C.F.R. §

287.8(c)(2)(i). “A warrant of arrest shall be obtained except

when the designated immigration officer has reason to

believe that the person is likely to escape before a warrant

can be obtained.” 8 C.F.R. § 287.8(c)(2)(ii).

(d) Arrests without warrant - The Act empowers immigration

officers authorized by regulation to arrest aliens whom the

officers have reason to believe is in the United States in

violation of any law or regulation made in pursuance of law

regulating the admission, exclusion, expulsion or removal of

aliens. INA § 287(a)(2). 8 C.F.R. § 287.5(c)(1) authorizes a

specified list of immigration officers to conduct these

arrests. 

(e) Examination of Aliens Arrested Without Warrant - “An

alien arrested without a warrant of arrest under the authority

contained in section 287(a)(2) of the Act will be examined

by an officer other than the arresting officer. If no other

qualified officer is readily available and the taking of the

alien before another officer would entail unnecessary delay,
page 282 of 365

the arresting officer . . . may examine the alien.” 8 C.F.R. §

287.3(a).

i) The Constitution does not mandate compliance with

this section, nor is there any evidence that this section

was promulgated to protect fundamental statutory or

constitutional rights. See Martinez-Camargo, 282 F.3d

487, 492 (7th Cir. 2002).

(f) Determination of Proceedings After Examination - If the

examining officer is satisfied that prima facie evidence

exists demonstrating that the arrested alien was entering,

attempting to enter, or is present in the United States in

violation of the immigration laws, the examining officer will

(1) refer the case to an immigration judge; (2) order the alien

removed; or (3) take whatever other action may be

appropriate or required by the applicable laws or regulations.

8 C.F.R. § 287.3(b).

(g) Provision of Advisals - “. . . [A]n alien arrested without a

warrant and placed in formal proceedings under section 238

or 240 of the Act will be advised of the reasons for his or her

arrest and the right to be represented at no expense to the

Government. The examining officer will provide the alien

with a list of the available free legal services . . . The officer

will also advise the alien that any statement made may be

used against him or her in a subsequent proceeding.” 8

C.F.R. § 287.3(c). In Matter of E-R-M-F- & A-S-M-, 25

I&N Dec. 580 (BIA 2011), the Board held that this

regulation does not require immigration officers to provide

these advisals until after the alien who has been arrested

without a warrant is placed in formal proceedings by the

filing of a Notice to Appear.

i) 8 C.F.R. § 287.3(c) was intended to serve a purpose of

benefit to the alien. Garcia-Flores, 17 I&N Dec. at 329.

(h) Alien’s Right to Counsel - 8 C.F.R. § 292.5(b) states that

“[w]henever an examination is provided for in this chapter,

the person involved shall have the right to be represented by

an attorney or representative . . . .”

i) ICE refers to post-arrest questioning of aliens as

“examination” in its regulations. See 8 C.F.R. §

287.3(a). Therefore, aliens have a right to counsel at

those examinations. See Kandamar v. Gonzales, 464

F.3d 65, 71 (1st Cir. 2006). However, the alien is not
page 283 of 365

entitled to be advised of this right until the NTA is

filed with the immigration court. See E-R-M-F- & AS-M-, 25 I&N Dec. at 584. 

ii) Where the alien is denied the opportunity to exercise

this right, the alien’s statements are considered

involuntary and must be excluded. See Matter of

Garcia, 17 I&N Dec. 319 (BIA 1980). 

d. Common issues

(1) Alleged Violations Involving non-ICE Law Enforcement Officers

(a) Fourth Amendment violations

i) Two unpublished Board decisions indicate that

motions to suppress based on violations of the Fourth

Amendment by non-immigration officers lack

adequate grounds to suppress evidence later gathered

by duly authorized immigration agents. See Jose

Ramiro Hernandez Avendano, A75 464 934, 2006 WL

2427873 (BIA July 18, 2006); Jorge Angel Puc-Ruiz,

A200 096 033, 2009 WL 263131 (BIA Jan. 13, 2009).

(b) Regulatory violations

i) In Samayoa-Martinez v. Holder, 558 F.3d 897, 900-01

(9th Cir. 2009), the Ninth Circuit found that the

military police officer who arrested Samayoa was not

an agent of INS and, therefore, was not required to

comply with INS regulations. The court also noted that

the military police officer had authority to arrest

Samayoa “for on-base violations of civil law.” Id. at

901.

(c) 287(g)(10)

i) Pursuant to section 287(g)(1) of the Act, state and local

law enforcement may perform certain immigration

officer functions if they enter into an agreement with

DHS.

ii) Section 287(g)(10) of the Act states that “Nothing in

this subsection shall be construed to require an

agreement under this subsection in order for any

officer or employee of a State or political subdivision

of a State – (A) to communicate with the Attorney
page 284 of 365

General regarding the immigration status of any

individual, including reporting knowledge that a

particular alien is not lawfully present in the United

States; or (B) otherwise to cooperate with the Attorney

General in the identification, apprehension, detention,

or removal of aliens not lawfully present in the United

States.”

iii) DHS may argue that, pursuant to section

287(g)(10)(B), a state or local police officer is

authorized to arrest, detain, and/or transport an alien.

Courts have interpreted this section of the Act in

different ways.

a) The Sixth Circuit has stated that this section

stands for the proposition that local law

enforcement officers cannot enforce completed

violations of civil immigration law (i.e., illegal

presence) unless specifically authorized to do so

by the Attorney General . . . .” United States v.

Urrieta, 520 F.3d 569, 575 (6th Cir. 2008). See

Georgia Latino Alliance for Human Rights v.

Deal, --- F. Supp. 2d ----, No. 1:11-CV-1804-

TWT, 2011 WL 2520752 (N.D. Ga. June 27,

2011) (quoting Urrieta, 520 F.3d at 575).

b) The Eighth Circuit has interpreted section

287(g)(10)(B) to authorize state law enforcement

to, at the request of ICE, take into custody,

transport, and detain overnight an individual who

had been ticketed for speeding. United States v.

Quintana, 623 F.3d 1237, 1242 (8th Cir. 2010).

c) The Ninth Circuit interprets the “otherwise to

cooperate” language of § 1357(g)(10)(B) to

mean that “when the Attorney General calls upon

state and local law enforcement officers – or such

officers are confronted with the necessity – to

cooperate with federal immigration enforcement

on an incidental and as needed basis, state and

local officers are permitted to provide this

cooperative help without the written agreements

that are required for systematic and routine

cooperation.” United States v. Arizona, 641 F.3d

339, 349 (9th Cir. 2010) (emphasis in original).
page 285 of 365

d) The Tenth Circuit has found that this section

“evinces a clear invitation from Congress for

state and local agencies to participate in the

process of enforcing federal immigration laws.”

United States v. Vasquez-Alvarez, 176 F.3d

1294, 1300 (10th Cir. 1999).

(d) A violation of state law by a state or local police officer does

not amount to a violation of the Fourth Amendment.

Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

See Martinez-Medina,, --- F.3d ----, No. 06-75778, 2011

WL 855791, at *8 (9th Cir. Mar. 11, 2011). 

(e) An authorized immigration officer may issue a detainer

which serves to advise another law enforcement agency that

ICE seeks custody of an alien presently in the custody of that

agency for the purpose of arresting and removing the alien. 8

C.F.R. § 287.7(a).

(f) Custodial transfers from state or local law enforcement to

ICE do not constitute new arrests. United States v. Laville,

480 F.3d 187, 196 (3d Cir. 2007). 

(2) Independent Source Doctrine

(a) An alien’s identity is never suppressible, even if it was

obtained as a result of an unlawful arrest, search, or

interrogation. INS v. Lopez-Mendoza, 468 U.S. 1032, 1039

(1984).

i) This has led some courts to find that pre-existing

governmental records are not suppressible under

Lopez-Mendoza because they are related to identity.

United States v. Farias-Gonzalez, 556 F.3d 1181, 1189

(11th Cir. 2009); United States v. Bowley, 435 F.3d

426, 430-41 (3d Cir. 2006); United States v. RoqueVillanueva, 175 F.3d 345, 346 (5th Cir. 1999).

However, other courts have held that such records can

be excluded. United States v. Oscar-Torres, 507 F.3d

224, 227-30 (4th Cir. 2007); United States v. OlivaresRangel, 458 F.3d 1104, 1111-12 (10th Cir. 2006);

United States v. Garcia-Beltran, 389 F.3d 864, 865

(9th Cir. 2004); United States v. Guevara-Martinez,

262 F.3d 751, 753-55 (8th Cir. 2001).

(b) Evidence of alienage is treated as separate from evidence of

identity and is suppressible. INS v. Lopez-Mendoza, 468
page 286 of 365

U.S. 1032, 1039 (1984); Almeida-Amaral v. Gonzales, 461

F.3d 231, 234 (2d Cir. 2006); Puc-Ruiz v. Holder, 629 F.3d

771, 777 n.1 (8th Cir. 2010); Matter of Sandoval, 17 I&N

Dec. 70, 79 (BIA 1979). But see United States v. GarciaGarcia, 633 F.3d 608, 616 (7th Cir. 2011).

(c) Any evidence obtained independently of a deficient search

may be relied upon. Matter of Cervantes-Torres, 21 I&N

Dec. 351, 353 (BIA 1996).

i) If the alien admits factual allegations or fails to object

to documents sufficient to establish to removability,

the IJ may determine that removability has been

established by clear and convincing evidence,

notwithstanding the existence of inadmissible prior

statements. See Miguel v. INS, 359 F.3d 408, 410-11

(6th Cir. 2004); 8 C.F.R. §§ 1240.8(a), 1240.10(c)

(2008).

ii) DHS may use the alien’s identity to obtain information

regarding prior entries or immigration violations from

official files maintained by DHS or other entities.

United States v. Guzman-Bruno, 27 F.3d 420 (9th Cir.

1994); United States v. Orozco-Rico, 589 F.2d 433,

435 (9th Cir. 1978). See Cervantes-Torres, 21 I&N

Dec. at 353-54.

(3) Reliability of the I-213

(a) “[A]bsent any evidence that a Form I-213 contains

information that is inaccurate or obtained by coercion or

duress, that document, although hearsay, is inherently

trustworthy and admissible as evidence to prove alienage or

deportability.” Matter of Gomez-Gomez, 23 I&N Dec. 522,

524 (BIA 2002). An I-213 may be suppressed if the officer

completing it relied on the hearsay statements of a nongovernmental third party who is not the respondent and that

third party is not made available for cross-examination. See

Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995).

(b) An I-213 will only be suppressed based on incorrect factual

information where that factual information is material to the

purpose for which the form was admitted. See Espinoza v.

INS, 45 F.3d 308, 309 (9th Cir. 1995).

(4) Waiver or Collateral Estoppel
page 287 of 365

(a) A guilty plea in criminal court does not preclude a

respondent from moving to suppress evidence in removal

proceedings. See United States v. Gregg, 463 F.3d 160, 164

(2d Cir. 2006).

H. The doctrine of equitable estoppel.

1. Equitable estoppel is a judicially devised doctrine which precludes a party to

a lawsuit, because of some improper conduct on that party's part, from

asserting a claim or defense, regardless of its substantive validity. Matter of

Hernandez-Puente, 20 I&N Dec. 335 (BIA 1991).

2. The Supreme Court has recognized the possibility that the doctrine of

equitable estoppel might be applied against the Government in a case where

it is established that its agents engaged in “affirmative misconduct.” INS v.

Hibi, 414 U.S. 5 (1973); Montana v. Kennedy, 366 U.S. 308 (1961). 

However, the Supreme Court has not yet decided whether even “affirmative

misconduct” is sufficient to estop the Government from enforcing the

immigration laws. INS v. Miranda, 459 U.S. 14 (1982).

3. Some federal courts have found “affirmative misconduct” and applied

estoppel against the Government. Corniel-Rodriguez v. INS, 532 F.2d 301

(2d Cir. 1976); Fano v. O'Neill, 806 F.2d 1262 (5th Cir. 1987).

4. Estoppel is an equitable form of action and only equitable rights are

recognized. By contrast, the Board can only exercise such discretion and

authority conferred upon the Attorney General by law. The Board's

jurisdiction is defined by the regulations and it has no jurisdiction unless it is

affirmatively granted by the regulations. Therefore, the Board and IJs are

without authority to apply the doctrine of equitable estoppel against the INS

so as to preclude it from undertaking a lawful course of action that it is

empowered to pursue by statute and regulation. Matter of Hernandez-Puente,

20 I&N Dec. 335 (BIA 1991).

I. The doctrine of collateral estoppel or res judicata

1. In general

a. The doctrine of collateral estoppel precludes parties to a judgment on

the merits in a prior suit from relitigating in a subsequent suit issues

that were actually litigated and necessary to the outcome of the prior

suit. Matter of Fedorenko, 19 I&N Dec. 57 (BIA 1984).

b. The doctrine of collateral estoppel generally applies to the Government

as well as to private litigants. Id.
page 288 of 365

c. The doctrine of collateral estoppel may be applied to preclude

reconsideration of an issue of law, as well as fact, so long as the issue

arises in both the prior and subsequent suits from virtually identical

facts and there has been no change in the in the controlling law. Id.

d. The doctrine of collateral estoppel applies in deportation proceedings

when there has been a prior judgment between the parties that is

sufficiently firm to be accorded conclusive effect, the parties had a full

and fair opportunity to litigate the issues resolved by and necessary to

the outcome of the prior judgment, and the use of collateral estoppel is

not unfair. Id.

e. The language in section 240(a)(3) of the Act, which provides that a

removal proceeding shall be “the sole and exclusive procedure for

determining whether an alien may be admitted to the United States or, if

the alien has been so admitted, removed from the United States,” does

not preclude the use of collateral estoppel in a deportation proceeding. 

Rather, this language was intended to exempt deportation proceedings

from the provisions of any other law, most particularly the

Administrative Procedure Act of June 11, 1946, 60 Stat. 237, repealed

by Pub. L. No. 89-554, 80 Stat. 378 (1966). Id.

f. Under the doctrine of collateral estoppel, a prior judgment conclusively

establishes the "ultimate facts" of a subsequent deportation proceeding,

i.e. those facts upon which an alien's deportability and eligibility for

relief from deportation are to be determined, and precludes

reconsideration of issues of law resolved by the prior judgment, so long

as the issues in the prior suit and the deportation proceeding arise from

virtually identical facts and there has been no change in the controlling

law. Id.

2. Decisions in criminal proceedings.

a. The adverse judgment of a court in a criminal proceeding is binding in a

deportation proceeding in which the respondent was the defendant in

the criminal case and in which the issue is one which was also an issue

in the criminal case. Matter of Z-, 5 I&N Dec. 708 (BIA 1954).

b. Where a respondent has been convicted in a criminal proceeding of a

conspiracy to violate 8 U.S.C. § 1325 (entry without inspection or by

willfully false or misleading representation or the willful concealment

of a material fact) but the indictment does not contain an allegation that

the respondent procured a visa by fraud, his conviction will not, under

the doctrine of collateral estoppel, establish his deportability as an alien

who procured a visa by fraud. Matter of Marinho, 10 I&N Dec. 214

(BIA 1962, 1963).
page 289 of 365

c. An alien attempting to enter the U.S. by presenting a false Alien

Registration Card who was paroled for prosecution and thereafter

convicted in a criminal proceeding of a violation of section 275 of the

Act (8 U.S.C. § 1325 - illegal entry) is not properly placed in exclusion

proceeding. Although the applicant was paroled into the U.S., he was

prosecuted and convicted of illegal entry. Therefore, an exclusion

proceeding will be terminated because, under the doctrine of collateral

estoppel, the Service is prevented from denying that the applicant made

an entry. Matter of Barragan-Garibay, 15 I&N Dec. 77 (BIA 1974).

d. The definition of the term “entry” in section 101(a)(13) of the Act

applies to both the criminal provisions of section 275 of the Act and the

deportation provisions of (former) section 241(a)(2). The definition of

“entry” in section 101(a)(13) was interpreted in Rosenberg v. Fleuti,

374 U.S. 449 (1963). Since the respondent was convicted in a criminal

proceeding of illegal entry, that decision is dispositive of any possible

Fleuti issue, and the respondent is collaterally estopped from relitigating

the issue of illegal entry in a subsequent deportation proceeding. Matter

of Rina, 15 I&N Dec. 346 (BIA 1975).

e. The doctrine of collateral estoppel prevents respondent, who was

convicted of entry without inspection under section 275 of the Act (8

U.S.C. 1325), from relitigating the illegal entry in subsequent

deportation proceedings. Matter of Rina, 15 I&N Dec. 453 (BIA 1975).

f. Where a respondent has been acquitted on a criminal charge, one of the

essential elements of which was alienage, the doctrine of collateral

estoppel does not preclude litigation of the question of his alienage in a

subsequent deportation proceeding because of the difference in the

burden of proof applicable to criminal proceedings and to deportation

proceedings. Matter of Perez-Valle, 17 I&N Dec. 581 (BIA 1980).

g. An applicant in exclusion proceedings is estopped from contending that

he was brought to the U.S. against his will where, in criminal

proceedings for attempted smuggling of heroin into the U.S., the court

considered the same contention and found that the applicant came to the

U.S. voluntarily. An applicant in possession of a visa for entry into the

U.S., destined to the U.S., voluntarily arriving in the U.S., and

submitting his luggage for inspection by Customs officials, must be

considered an applicant for admission. Matter of Grandi, 13 I&N Dec.

798 (BIA 1971).

h. Ordinarily a court decision may be res judicata or operate as a collateral

estoppel in a subsequent administrative proceeding, but when a

respondent presented a fraudulent offer of employment with his

application for an immigrant visa and was later convicted in a criminal

proceeding of a conspiracy to violate 18 U.S.C. § 1001 (making false
page 290 of 365

statements or using false writings), the doctrine of collateral estoppel

does not estop the respondent from denying that he was excludable at

entry under former section 212(a)(19) of the Act [procured visa by

fraud or willfully misrepresenting a material fact] or former section

212(a)(20) of the Act [immigrant not in possession of a valid immigrant

visa] because of the issue of materiality. In the deportation proceeding,

the test of materiality is whether the matter concealed concerned a

ground of inadmissibility or a probable inadmissibility. See Matter of

S- and B-C-, 9 I&N Dec. 436 (BIA 1960; A.G.1961). In the criminal

case (in those jurisdictions where materiality is required), the test of

materiality is merely whether the false statement could affect or

influence the exercise of a Governmental function. An offer of

employment is not legally required as an absolute condition for the

issuance of an immigrant visa. The purpose of such a document is

merely to assist the Counsel in his determination of whether to issue the

visa. Therefore, the respondent's misrepresentation was not material

and he is not deportable for being excludable at entry. Matter of

Martinez-Lopez, 10 I&N Dec. 409 (BIA 1962; A.G. 1964).

3. Decisions in denaturalization cases.

a. Under the doctrine of collateral estoppel, a prior denaturalization

judgment conclusively establishes the “ultimate facts” of a subsequent

deportation proceeding, i.e. those facts upon which an alien's

deportability and eligibility for relief from deportation are to be

determined, and precludes reconsideration of issues of law resolved by

the prior judgment, so long as the issues in the prior suit and the

deportation proceeding arise from virtually identical facts and there has

been no change in the controlling law. Matter of Fedorenko, 19 I&N

Dec. 57 (BIA 1984).

b. Where one of the principal issues in a denaturalization suit was whether

the respondent had been a member of the Communist Party from 1930

to 1936 and this issue was litigated and was essential to the court's

determination which resulted in a judgment revoking citizenship, by the

doctrine of collateral estoppel the finding by the court in the

denaturalization suit was conclusive in the subsequent deportation

proceeding involving a charge based upon a like period of membership

in the Communist Party. Matter of C-, 8 I&N Dec. 577 (BIA 1960).

c. Under the doctrine of collateral estoppel, a finding by a denaturalization

court which was essential to its judgment that the respondent was a

member of the Communist Party from 1937 to 1945 is conclusive in a

subsequent deportation proceeding. Matter of T-, 9 I&N Dec. 127 (BIA

1960).

4. Decisions in extradition proceedings.
page 291 of 365

a. Decisions resulting from extradition proceedings are not entitled to res

judicata effect in later proceedings. The parties to an extradition

proceeding are not the same as in a deportation proceeding since the

real party at interest in extradition proceedings is the foreign country

seeking the respondents extradition, not the U.S. Also, the res judicata

bar goes into effect only where a valid, final judgment has been

rendered on the merits. It is well established that decisions and orders

regarding extraditability embody no judgment on the guilt or innocence

of the accused, but serve only to insure that his culpability will be

determined in another forum. While the function of a deportation

proceeding also is not to decide an alien's guilt or innocence of a crime,

those cases holding that extradition decisions do not bind judicial

bodies in later criminal proceedings are as applicable to subsequent

deportation proceedings. The issues involved in a deportation hearing

differ from those involved in an extradition case, and resolution of even

a common issue in one proceeding is not binding in the other. 

Therefore, a magistrate's decision in extradition proceedings that the

crimes committed by the respondent in a foreign country were political

crimes which bar his extradition does not bind the Board. Matter of

McMullen, 17 I&N Dec. 542, 548 (BIA 1980), rev’d on other grounds,

658 F.2d 1312 (9th Cir. 1981), on remand, Matter of McMullen, 19

I&N Dec. 90 (BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986), overruled

in part on other grounds by Barapind v. Enomoto, 400 F.3d 744 (9th

Cir. 2005).

5. Decisions in prior deportation proceedings or other administrative decisions.

a. Based on the decision of the Supreme Court in Pearson v. Williams,

202 U.S. 281 (1906) and other federal courts which held that the

doctrine of res judicata has no application in administrative

proceedings, the Board held that the doctrine is not applicable to

deportation proceedings. Matter of M-, 8 I&N Dec. 535 (BIA 1960);

Matter of K-, 3 I&N Dec. 575 (BIA 1949).

b. The Supreme Court stated that when an administrative agency is acting

in a judicial capacity and resolves disputed issues of fact properly

before it which the parties have had an adequate opportunity to litigate,

the doctrine of res judicata may apply. United States v. Utah Constr. &

Min. Co., 384 U.S. 394 (1982) (citing Pearson v. Williams, 202 U.S.

281 (1906) as an example of where a court used language that was too

broad in stating that res judicata principles do not apply to

administrative proceedings), superseded by statute on other grounds as

recognized by Essex Electro Engineers, Inc. v. United States, 702 F.2d

998 (Fed. Cir. 1983); see also Kremer v. Chemical Constr. Corp., 456

U.S. 461 (1982) (requiring a full and fair opportunity to litigate the

claim or issue).
page 292 of 365

c. In Medina v. INS, 993 F.2d 499 (5th Cir. 1993), the 5th Circuit

specifically held that res judicata may be applied to decisions in

deportation proceedings provided (1) the case in which the valid, final

judgment was rendered involved the same parties and issues and (2)

there was an opportunity to reach the merits on those issues. See also

United States v. Shanbaum, 10 F.3d 305 (5th Cir. 1994). The 9th

Circuit has also given res judicata effect to an IJ’s decision. RamonSepulveda v. INS, 824 F.2d 749 (9th Cir. 1987).

6. Miscellaneous cases.

a. The fact that a respondent was inspected and erroneously admitted to

the U.S. by a Service officer does not operate to estop the Service from

instituting a deportation proceeding against the respondent if it is later

discovered that he was excludable at the time of his admission. Matter

of Khan, 14 I&N Dec. 397 (BIA 1973), aff’d sub nom. Santiago v. INS,

526 F.2d 488 (9th Cir. 1975); Matter of Polanco, 14 I&N Dec. 483

(BIA 1973).

b. A respondent admitted for permanent residence in possession of an

immigrant visa issued to him as the spouse of a U.S. citizen upon the

basis of a visa petition approved by the Service subsequent to the

commencement but prior to the conclusion of deportation proceedings

instituted against his wife which resulted in a determination, ultimately

sustained by the U.S. Court of Appeals, that she was not in fact a citizen

of the U.S. is not immune to deportation proceedings. Notwithstanding

the visa petition approval may have been an erroneous act, there was no

“affirmative misconduct” and the Service is not estopped in subsequent

deportation proceedings against respondent from showing that his wife

was not a citizen. The fact that a formal decision was made on the visa

petition does not, by itself, give substantial weight to respondent's

estoppel argument. The approval of the petition was by no means a

final determination of the citizenship claim of the respondent's wife. 

Matter of Morales, 15 I&N Dec. 411 (BIA 1975). This decision was

based on a lack of equitable estoppel rather than on the doctrine of

collateral estoppel. Under the doctrine of collateral estoppel, the

respondent was not a party to the previous visa petition proceeding. As

to the deportation proceeding brought against his wife, the doctrine of

collateral estoppel might not apply because the burden of proof may be

different in visa petition proceedings than in deportation proceedings.

c. Since applicants are not entitled to immediate relative status on the

basis of claimed adoption in the Yemen Arab Republic (which does not

recognize the practice of adoption), the Service is not estopped from

excluding them under former section 212(a)(20) of the Act as

immigrants not in possession of valid immigrant visas notwithstanding
page 293 of 365

the erroneous approval of visa petitions according them immediate

relative status. Not only is the Service empowered to make a

redetermination of an applicant's admissibility upon arrival at a port of

entry with an immigrant visa, it is under an absolute duty to do so under

sections 204(e) and 235(b) of the Act. Matter of Mozeb, 15 I&N Dec.

430 (BIA 1975).

J. Classified information.

1. 8 C.F.R. § 1240.33(c)(4) provides that counsel for the Service may call

witnesses and present evidence for the record, including information

classified under the applicable Executive Order, provided the IJ or the 

Board has determined that such information is relevant to the hearing. 

(Although 8 C.F.R. § 1240.33 deals specifically with applications for asylum,

the rules cited below appear applicable anytime classified material is

presented.)

a. 8 C.F.R. § 1240.33(c)(4) also provides that the applicant shall be

informed when the IJ receives such classified information.

b. 8 C.F.R. § 1240.33(c)(4) also states that the agency that provides the

classified information to the IJ may provide an unclassified summary 

of the information for release to the applicant whenever it determines it

can do so consistently with safeguarding both the classified nature of

the information and its source. The summary should be as detailed as

possible, in order that the applicant may have an opportunity to offer

opposing evidence.

c. 8 C.F.R. § 1240.33(c)(4) also provides that a decision based in whole or

in part on classified information shall state that such information is

material to the decision.

K. Protective orders

1. 8 C.F.R. § 1003.46(a) provides that in any immigration or bond proceeding,

an IJ may issue a protective order barring disclosure of information upon a

showing by the Department of Homeland Security of a substantial likelihood

that specific information submitted under seal or to be submitted under seal

will, if disclosed, harm the national security as defined in section 219(d)(2) of

the Act or law enforcement interests of the U.S.

a. Section 219(d)(2) of the Act defines the term “national security” as the

national defense, foreign relations, or economic interests of the United

States.

2. 8 C.F.R. § 1003.46(b) provides that the Department of Homeland Security

may at any time after filing a NTA or other charging document with the IJ,
page 294 of 365

file a motion for an order to protect specific information it intends to submit

or is submitting under seal.

a. The motion shall describe, to the extent practical, the information that

the Department of Homeland Security seeks to protect from disclosure.

b. The motion shall specify the relief requested in the protective order.

c. The motion shall be served upon the respondent.

d. The respondent may file a response to the motion within 10 days after

the motion is served.

e. 8 C.F.R. § 1003.46(c) provides that, in the Department of Homeland

Security’s discretion, DHS may file the specific information as a sealed

annex to the motion, which shall not be served upon the respondent. If

DHS files a sealed annex, or the IJ, in his or her discretion, instructs

that the information be filed as a sealed annex in order to determine

whether to grant or deny the motion, the IJ shall consider the

information only for the purpose of determining whether to grant or

deny the motion.

3. 8 C.F.R. § 1003.46(d) provides that the IJ shall give appropriate deference to

the expertise of senior officials in law enforcement and national security

agencies in any averments in any submitted affidavit in determining whether

the disclosure of information will harm the national security or law

enforcement interests of the U.S.

4. Denied motions. 8 C.F.R. § 1003.46(e) provides that if the motion is denied,

any sealed annex shall be returned to the Department of Homeland Security,

and the IJ shall give no weight to such information. DHS may immediately

appeal denial of the motion to the Board, which shall have jurisdiction to hear

the appeal, by filing a Notice of Appeal and the sealed annex with the Board.

The IJ shall hold any further proceedings in abeyance pending resolution of

the appeal by the Board.

5. Granted motions. 8 C.F.R. § 1003.46(f) provides that if the motion is

granted, the IJ shall issue an appropriate protective order.

6. 8 C.F.R. § 1003.46(f)(1) provides that the IJ shall ensure that the protective

order encompasses such witnesses as the respondent demonstrates are

reasonably necessary to the presentation of his case. If necessary, the IJ may

impose the requirements of the protective order on any witness before the IJ

to whom such information may be disclosed.
page 295 of 365

7. The protective order may require that the respondent, and his or her attorney

or accredited representative, if any, to do any of the following (8 C.F.R. §

1003.46(f)(2)):

a. Not divulge any of the information submitted under the protective

order, or any information derived therefrom, to any person or entity,

other than authorized personnel of EOIR, the Department of Homeland

Security, or such other persons approved by DHS or the IJ;

b. When transmitting any information under a protective order, or any

information derived therefrom, to EOIR or the Department of

Homeland Security, include a cover sheet identifying the contents of the

submission as containing information subject to a protective order

under 8 C.F.R. § 1003.46;

c. Store any information under a protective order, or any information

derived therefrom, in a reasonably secure manner, and return all copies

of such information to the Department of Homeland Security upon

completion of proceedings, including judicial review; and 

d. Such other requirements as the IJ finds necessary to protect the

information from disclosure.

8. Upon issuance of a protective order, the Department of Homeland Security

shall serve the respondent with the protective order and the sealed

information. Once a protective order is issued, it shall remain in effect until

vacated by the IJ. 8 C.F.R. § 1003.46(f)(3).

9. 8 C.F.R. § 1003.46(f)(4) provides that further review of the protective order

before the Board shall only be had pursuant to review of an order of the IJ

resolving all issues of removability and any applications for relief pending in

the matter pursuant to 8 C.F.R. § 3.1(b). It also provides that, notwithstanding

any other provision the regulation, the IJ shall retain jurisdiction to modify or

vacate a protective order upon motion of the Department of Homeland

Security or the respondent. An IJ may not grant a motion by the respondent to

modify or vacate a protective order until either: DHS files a response to such

motion or 10 days after service of such motion on DHS.

10. Admissibility as evidence. 8 C.F.R. § 1003.46(g) provides that the issuance

of a protective order shall not prejudice the respondent’s right to challenge

the admissibility of the information subject to a protective order. The IJ may

not find the information inadmissible solely because it is subject to a

protective order.

11. 8 C.F.R. § 1003.46(h) provides that any submission to the IJ including any

briefs referring to information subject to a protective order shall be filed
page 296 of 365

under seal. Any information submitted subject to a protective order shall

remain under seal as part of the administrative record.

12. Failure to comply with protective order. 8 C.F.R. § 1003.46(i) provides that

if the Department of Homeland Security establishes that a respondent, or the

respondent’s attorney or accredited representative, has disclosed information

subject to a protective order, the IJ shall deny all forms of discretionary relief,

except bond, unless the respondent fully cooperates with DHS or other law

enforcement agencies in any investigation relating to the noncompliance with

the protective order and disclosure of the information; and establishes by

clear and convincing evidence either that extraordinary and extremely

unusual circumstances exist or that failure to comply with the protective

order was beyond the control of the respondent and his or her attorney or

accredited representative. Failure to comply with a protective order may also

result in the suspension of an attorney’s or an accredited representative’s

privilege of appearing before EOIR or before DHS.

13. The consequence of breaching a protective order is discussed in Matter of RS-H-, 23 I&N Dec. 629 (BIA 2003). That case holds that the presence of

federal employees, including court personnel or Department of Justice

attorneys, at a closed hearing in which a protective order is discussed does

not violate the protective order regulations.

L. Constitutional issues

1. Neither the Board nor an IJ may rule on the constitutionality of the statutes

they administer or the regulations properly promulgated under the provisions

of the Immigration and Nationality Act. Matter of Patel, 19 I&N Dec. 774

(BIA 1988); Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982); Matter of

Bogart, 15 I&N Dec. 552 (BIA 1975, 1976; A.G. 1976); Matter of Chery and

Hasan, 15 I&N Dec. 380 (BIA 1975); Matter of Santana, 13 I&N Dec. 362

(BIA1969); Matter of L-, 4 I&N Dec. 556 (BIA 1951).

M. Administrative notice

1. Although immigration proceedings are not bound by the strict rules of

evidence or by the Federal Rules of Evidence, reference is made herein to the

Federal Rules of Evidence for the purposes of definition and background.

a. Rule 201(b) provides that a judicially noticed fact must be one not

subject to reasonable dispute in that it is either (1) generally known

within the territorial jurisdiction of the trial court or (2) capable of

accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned.

b. Rule 201(c) provides that judicial notice is discretionary and a court

may take judicial notice, whether requested or not. Rule 201(d)
page 297 of 365

discusses when it is mandatory and provides that a court shall take

judicial notice if requested by a party and supplied with the necessary

information.

c. Rule 201(e) discusses the opportunity to be heard and states that a party

is entitled upon timely request to an opportunity to be heard as to the

propriety of taking judicial notice and the tenor of the matter noticed. It

goes on to state that in the absence of prior notification, the request may

be made after judicial notice has been taken.

2. The Board has held that it is well established that administrative agencies and

the courts may take judicial (or administrative) notice of commonly known

facts. Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998); Matter of H-M-,

20 I&N Dec. 683 (BIA 1993); Matter of R-R-, 20 I&N Dec. 547, 551 n.2

(BIA 1992) (citing Ohio Bell Telephone Co. v. Public Utilities Commission,

301 U.S. 292 (1937)).

3. The issue of administrative notice arises most often in the asylum context and

the Board has held that it may take administrative notice of changes in

foreign governments. Matter of R-R-, 20 I&N Dec. 547 (BIA 1992). 

4. There is a circuit split regarding the extent to which an alien must be afforded

an opportunity to respond when the Board takes administrative notice of

facts.

a. The Ninth Circuit has held that it is improper for the Board to take

administrative notice of “controversial or individualized facts, such as

whether a particular group remains in power after an election, and

whether the election has vitiated any previously well-founded fear of

persecution,” unless the alien is given “an opportunity to rebut the

extra-record facts or show cause why administrative notice should not

be taken of those facts.” Getachew v. INS, 25 F.3d 841, 846 (9th Cir.

1994). See also Circu v. Gonzales, 450 F.3d 990 (9th Cir. 2006);

Gomez-Vigil v. INS, 990 F.2d 1111 (9th Cir. 1993); Castillo-Villagra v.

INS, 972 F.2d 1017 (9th Cir. 1992). 

b. Similarly, the Tenth Circuit has held that “where the BIA noticed facts

and made disputable inferences based on those facts which not only

contradicted the findings of the immigration judge but were dispositive

of Petitioners’ appeal, we hold that due process requires the BIA to give

Petitioners advance notice and an opportunity to be heard.” de la LlanaCastellon v. INS, 16 F.3d 1093, 1099 (10th Cir. 1994).

c. The Second Circuit recently published two decisions that were in

accord with the Ninth and Tenth Circuits. In reversing the Board’s

denial (based solely on administratively-noticed facts) of a motion to

reopen, the Second Circuit held that the Board “exceeded its discretion
page 298 of 365

in failing to provide [the alien] with an opportunity to rebut the

significance of those facts before issuing its decision.” Chhetry v.

Dep’t of Justice, 490 F.3d 196, 201 (2d Cir. 2007). Similarly, in

reversing the Board’s denial (based solely on administratively noticed

facts) of an asylum application, the Second Circuit stated that “the BIA

erred by failing to give [the alien] advance notice of its intention to

consider this extra-record fact. . . . [and] the opportunity to rebut this

fact’s significance before issuing its decision.” Burger v. Gonzales, 498

F.3d 131 (2d Cir. 2007).

d. The Seventh Circuit has disagreed with the above circuits, with that

court stating that “the motion to reopen procedure allows asylum

petitioners an opportunity to introduce evidence rebutting officially

noticed facts which is sufficient to satisfy” due process requirements. 

Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir. 1991). Similarly, the

Fifth Circuit has held that “[t]he motion to reopen provides [aliens who

have applied for asylum] with an opportunity to be heard regarding

facts officially noticed and to present contrary evidence.” Rivera-Cruz

v. INS, 948 F.2d 962, 968 (5th Cir. 1991). Finally, the D.C. Circuit has

ruled that, where the Board took official notice of a change in

government while an asylum application was before the Board on

appeal, “[t]he availability of a petition to reopen secures [the alien’s]

due process right to a meaningful hearing.” Gutierrez-Rogue v. INS,

954 F.2d 769, 773 (D.C. Cir. 1992).

N. Items which are not evidence

1. The arguments of counsel and statements made in a brief or on a Notice of

Appeal are not evidence and therefore not entitled to any evidentiary weight. 

INS v. Phinpathya, 464 U.S. 183 (1984), superseded by statute on other

grounds as recognized by INS v. Hector, 479 U.S. 85 (1986); Matter of

Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980); Matter of M/V "Runaway",

18 I&N Dec. 127 (BIA 1981).

2. Evidence first submitted on appeal and not offered at the trial level is not

considered by the Board. Matter of Obaigbena, 19 I&N Dec. 533 (BIA

1988); Matter or Arias, 19 I&N Dec. 568 (BIA 1988); Matter of Soriano, 19

I&N Dec. 764 (BIA 1988); Matter of Estime, 19 I&N Dec. 450 (BIA 1987).

O. An IJ’s duties regarding evidence.

1. Under regulations effective September 25, 2002, the Board has limited factfinding ability on appeal. This heightens the need for IJs to include in their

decisions clear and complete findings of fact that are supported by the record

and are in compliance with controlling law. Matter of S-H-, 23 I&N Dec.

462 (BIA 2002).
page 299 of 365

X. Aggravated felonies

A. Background

1. The concept of an “aggravated felony” was first created and added to the

Immigration and Nationality Act by the Anti-Drug Abuse Act of 1988 which

became effective on November 18, 1988. Section 501 of the Immigration

Act of 1990 (effective November 29, 1990) amended the definition and

added 2 new crimes (money laundering and crime of violence) to it. A few

corrections were made by the Miscellaneous and Technical Immigration and

Naturalization Amendments of 1991 (enacted December 12, 1991). Section

222(a) of the Immigration and Technical Corrections Act of 1994 again

amended the definition and added many new crimes to it. It was again

amended by section 321(a)(3) of the IIRIRA in 1996.

2. The term “aggravated felony” is defined in section 101(a)(43) of the Act as

the following crimes committed within the U. S. or a foreign country. It

applies to violations of both state and federal law. The original definition

provided that if the offense is a violation of foreign law, the offense must

have been committed after the effective date of the Immigration Act of 1990

(November 29, 1990) and the term of imprisonment must have been

completed within the previous 15 years. The definition now provides that it

includes an offense in violation of the law of a foreign country for which the

term of imprisonment was completed within the previous 15 years.

B. Murder, rape, or sexual abuse of a minor

1. A victim of sexual abuse who is under the age of 18 is a “minor” for purposes

of determining whether an alien has been convicted of sexual abuse of a

minor within the meaning of section 101(a)(43)(A) of the Act. Matter of VF-D-, 23 I&N Dec. 859 (BIA 2006).

a. The offense of indecency with a child by exposure pursuant to section

21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse

of a minor and is therefore an aggravated felony within the meaning of

section 101(a)(43)(A) of the Immigration and Nationality Act. Matter of

Rodriguez-Rodriguez, 22 I&N Dec. 991 (BIA 1999).

(1) In seeking to define the term “sexual abuse of a minor”, the Board

referred to the Black’s Law Dictionary definition of the term

stating that it is commonly defined as “[i]llegal sex acts performed

against a minor by a parent, guardian, relative, or acquaintance.” 

The Board also used the definition of the term found in 18 U.S.C.

§ 3509(a) which defines “sexual abuse” as “the employment, use,

persuasion, inducement, enticement, or coercion of a child to

engage in, or assist another person to engage in, sexually explicit

conduct or the rape, molestation, prostitution, or other form of
page 300 of 365

sexual exploitation of children, or incest with children.”

18 U.S.C. § 3509(a)(8). Sexually explicit conduct includes

lascivious exhibition of the genitals or pubic area of a person or

animal. 18 U.S.C. § 3509(a)(9)(D); Matter of RodriguezRodriguez, 22 I&N Dec. 991 (BIA 1999); see Restrepo v. Att’y

Gen., 617 F.3d 787 (3d Cir. 2010)(affording Chevron deference to

the Board’s interpretation of “sexual abuse of a minor” and

rejecting the Ninth Circuit’s interpretation of “sexual abuse of a

minor” in Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.

2008) (en banc).

(2) The Board also stated “Abuse is defined in relevant part as

physical or mental maltreatment.” This definition suggests that

the common usage of the term includes a broad range of

maltreatment of a sexual nature, and it does not indicate that

contact with the minor is a limiting factor. Matter of RodriguezRodriguez, 22 I&N Dec. 991 (BIA 1999).

(3) A conviction under California Penal Code section 288(a), for lewd

or lascivious act on a child under the age of 14 years, qualifies as

a conviction for “sexual abuse of a minor” and is an aggravated

felony. United States v. Baron-Medina, 187 F.3d 1144 (9th Cir.

1999). In reaching that conclusion, the court stated, “We look

solely to the statutory definition of the crime, not to the name

given to the offense or to the underlying circumstances of the

predicate conviction.”

(4) The Ninth Circuit addressed the generic definition of “sexual

abuse of a minor” in two decisions: Estrada-Espinoza v. Mukasey,

546 F.3d 1147 (9th Cir. 2008) (en banc), and United States v.

Medina-Villa, 567 F.3d 507 (9th Cir. 2009). In Estrada-Espinoza,

the court explained that a statutory rape statute of conviction

qualifies as the generic offense of “sexual abuse of a minor” if it

includes the following elements: (1) a mens rea of knowingly

engaging in; (2) a sexual act; (3) with a minor who is at least

twelve but not yet sixteen years of age; and (4) an age difference

of at least four years between the defendant and the minor. 546

F.3d at 1152, 1158 (citing 18 U.S.C. § 2243). In Medina-Villa,

the court held that a crime that is not a statutory rape crime may

meet the federal generic offense of “sexual abuse of a minor” if:

(1) the conduct prohibited by the criminal statute is sexual, (2) the

statute protects a minor, and (3) the statute requires abuse. A

criminal statute includes the element of “abuse” if it expressly

prohibits conduct that causes “physical or psychological harm in

light of the age of the victim in question.” Id. 
page 301 of 365

(5) The Board originally held that a conviction for “murder, rape, or

sexual abuse of a minor” must be for a felony offense in order for

the crime to be considered an aggravated felony under section

101(a)(43)(A) of the Act. Matter of Crammond, 23 I&N Dec. 9

(BIA 2001). It later vacated that decision because the alien had

departed the U.S. during the pendency of the appeal. Matter of

Crammond, 23 I&N Dec. 179 (BIA 2001). The Board now holds

that a misdemeanor offense of sexual abuse of a minor constitutes

an aggravated felony under section 101(a)(43)(A) of the Act. 

Matter of Small, 23 I&N Dec. 448 (BIA 2002). The Board stated

that the change in its position was based on decisions of Circuit

Courts in United States v. Gonzales-Vela, 276 F.3d 763 (6th Cir.

2001); Guerrero-Perez v. INS, 242 F.3d 727 (7th Cir. 2001), reh’g

denied, Guerrero-Perez v. INS, 256 F.3d 546 (7th Cir. 2001);

United States v. Robles-Rodriguez, 281 F.3d 900 (9th Cir. 2002);

United States v. Marin-Navarette, 244 F.3d 1284 (11th Cir.), cert.

denied, 534 U.S. 941 (2001).

(a) Under federal law, an offense is defined as a felony if it is

one for which the maximum term of imprisonment

authorized is, at a minimum, “more than 1 year.” An

offense is classified as a misdemeanor if the maximum

authorized term of imprisonment is “one year or less,” and

the minimum authorized term of imprisonment is 5 days.

C. Illicit trafficking in any controlled substance

1. (Defined in section 102 of the Controlled Substances Act), including any

drug trafficking crime as defined in 18 U.S.C. section 924(c)(2) - Section

101(a)(43)(B).

a. The term “drug trafficking crime” referenced in the aggravated felony

definition is defined in section 924(c) of title 18, United States Code as

“any felony punishable under the Controlled Substances Act (21 U.S.C.

§ 801 et seq.) (CSA), the Controlled Substances Import and Export Act

(21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act

(46 U.S.C. App. § 1901 et seq.).” Matter of Yanez, 23 I&N Dec. 390,

393 (BIA 2002).

(1) An offense in violation of Mich. Comp. Laws §

333.7401(2)(d)(iii) is categorically an aggravated felony pursuant

to section 101(a)(43)(B) of the Act. Garcia v. Holder, 638 F.3d

511 (6th Cir. 2011).

b. The Controlled Substances Act defines the term “felony” at 21 U.S.C. §

802(13) as “any Federal or State offense classified by applicable

Federal or State law as a felony.” This definition also applies to the
page 302 of 365

Controlled Substances Import and Export Act and the Maritime Drug

Law Enforcement Act. See 21 U.S.C. § 951(b); 46 U.S.C. App. §

1903(i); Matter of Yanez, 23 I&N Dec. 390 (BIA 2002).

c. Absent contrary controlling precedent, a state law misdemeanor offense

of conspiracy to distribute marijuana qualifies as an aggravated felony

under INA section 101(a)(43)(B) where its elements correspond to the

elements of the Federal felony offense of conspiracy to distribute an

indeterminate quantity of marijuana. Matter of Aruna, 24 I&N Dec.

452 (BIA 2008).

d. Conduct treated as a felony under state law but as a misdemeanor by the

CSA.

(1) History lesson - Circuits were split on the issue of whether a nontrafficking state drug felony constituted a “felony punishable

under the Controlled Substances Act,” and thus, an aggravated

felony. The 1st, 4th, 5th, 8th, 10th and 11th Circuits all concluded

that a state law felony that is a misdemeanor under the CSA does

constitute an aggravated felony for immigration purposes. United

States v. Wilson, 316 F.3d 506 (4th Cir. 2003); United States v.

Simon, 168 F.3d 1271 (11th Cir. 1999); United States v.

Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997); United States v.

Briones-Mata, 116 F.3d 308 (8th Cir. 1997); United States v.

Cabrera-Sosa, 81 F.3d 998 (10th Cir. 1996); United States v.

Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996). The 2nd, 3rd, 6th,

7th, and 9th Circuits held that such a state law felony would not

constitute an aggravated felony. Gonzales-Gomez v. Achim, 441

F.3d 532 (7th Cir. 2006); United States v. Palacios-Suarez, 418

F.3d 692 (6th Cir. 2005); Cazarez-Gutierrez v. Ashcroft, 382 F.3d

905 (9th Cir. 2004); Gerbier v. Holmes, 280 F.3d 297 (3d Cir.

2002); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996). The Board,

recognizing the circuit split, held that the determination whether a

state drug offense constitutes a “drug trafficking crime” under 18

U.S.C. § 924(c)(2) (2000), such that it may be considered an

“aggravated felony” under section 101(a)(43)(B) of the Act shall

be made by reference to decisional authority from the federal

circuit courts of appeals, and not by reference to any separate legal

standard adopted by the Board. Matter of Yanez, 23 I&N Dec.

390 (BIA 2002) (overruling Matter of K-V-D-, 22 I&N Dec. 1163

(BIA 1999)).

(2) PRESENT LAW - In Lopez v. Gonzales, the Supreme Court held

that a state offense constitutes a “felony punishable under the

Controlled Substances Act” only if it proscribes conduct

punishable as a felony under that federal law. 549 U.S. 47, 60

(2006). That case involved an alien who had been convicted in
page 303 of 365

South Dakota of aiding and abetting another person’s possession

of cocaine (the equivalent of possession in South Dakota), a

felony South Dakota. Id. at 51. The Eighth Circuit upheld the

Board’s decision affirming the IJ’s decision finding that the alien

had been convicted of an aggravated felony under the INA. Id. at

52. The Supreme Court reversed the Eighth Circuit, reasoning that

mere possession could not be considered “trafficking” in the

commonsense meaning of the word. Id. at 58-60.

e. Recidivism

(1) The Board has held that, where an alien is convicted of a simple

drug possession offense under state law, this conviction is only

deemed to be an aggravated felony as a recidivist drug trafficking

offense if, during the criminal proceedings, the alien either

admitted his or her status as a recidivist drug offender or this

status was determined by a judge or jury. Matter of CarachuriRosendo, 24 I&N Dec. 382 (BIA 2007), overruled on other

grounds by Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010);

see also Matter of Thomas, 24 I&N Dec. 416 (BIA 2007).

(2) The Supreme Court overruled the Fifth Circuit and held that

second or subsequent simple possession offenses are not

aggravated felonies under 101(a)(43) when the state conviction is

not based on the fact of a prior conviction. Carachuri-Rosendo v.

Holder, 130 S. Ct. 2577 (2010), overruling Carachuri-Rosendo,

570 F.3d 263 (5th Cir. 2009) and abrogating Fernandez v.

Mukasey, 544 F.3d 862 (7th Cir. 2008); Matter of Thomas, 24

I&N Dec. 416 (BIA 2007); see Espinal v. Holder, 636 F.3d 703

(5th Cir. 2011). 

f. For a state offense to constitute an aggravated felony as a “drug

trafficking crime,” the offense must be a felony under federal law, as

opposed to state law. Lopez v. Gonzales, 549 U.S. 47 (2006)

g. An alien convicted under 18 U.S.C. section 924(c)(1) for use of a

firearm during a drug trafficking crime is deportable under section

241(a)(2)(A)(iii) of the Act [now section 237(a)(2)(A)(iii)] as an alien

convicted of an aggravated felony as well as under section 241(a)(2)(C)

of the Act as an alien convicted of a firearm violation. Matter of K-L-,

20 I&N Dec. 654 (BIA 1993).

D. Illicit trafficking in firearms or destructive devices 

1. Defined in 18 U.S.C. section 921 or in explosive materials as defined in 18

U.S.C. section 841(c) - Section 101(a)(43)(C). See pages 58-63 above for

discussion of ground of deportability.
page 304 of 365

a. 18 U.S.C. section 921 defines “firearms” as:

(1) any weapon which will or may be converted to expel a projectile

by explosive action;

(2) the frame or receiver of any such weapon;

(3) any firearm muffler or silencer;

(4) any destructive device, but does not include antique firearms.

b. 18 U.S.C. section 921 defines “destructive device” as:

(1) any bomb, grenade, rocket, missile, mine, or similar device which

is explosive, incendiary, or contains poison gas;

(2) any weapon (other than shotgun shells for sporting use) which

will or may be converted to expel a projectile by explosive or

other propellant and which has a barrel with a bore of more than

one-half inch in diameter;

(3) any combination of parts from which a destructive device may be

assembled.

c. 18 U.S.C. section 841(c) defines “explosive materials” as explosives,

blasting agents, and detonators.

E. Laundering of monetary instruments

1. Any offense described in 18 U.S.C. section 1956 relating to laundering of

monetary instruments or an offense described in 18 U.S.C. section 1957

relating to engaging in monetary transactions in property derived from

specific unlawful activity if the amount of the funds exceeded $10,000 -

Section 101(a)(43)(D).

a. Proof that all of the money was gained through unlawful activity is not

required. Hakim v. Holder, 628 F.3d 151 (5th Cir. 2010).

F. Explosive materials and firearms offenses

1. An offense described in 18 U.S.C. section 842(h) or (i) or 18 U.S.C.

section 844(d), (e), (f), (g), (h), or (i) relating to explosive materials offenses

- Section 101(a)(43)(E)(i).

a. 18 U.S.C. section 842(h) provides that it is unlawful for any person to

receive, conceal, transport, ship, barter, sell, or dispose of any explosive
page 305 of 365

materials knowing or having reasonable cause to believe that such

materials were stolen.

b. 18 U.S.C. section 842(i) provides that it is unlawful for any explosive

to be shipped in or received from interstate or foreign commerce by any

person who:

(1) is under indictment for, or who has been convicted in any court of,

a crime punishable by imprisonment for a term not exceeding one

year;

(2) is a fugitive from justice;

(3) is an unlawful user of or addicted to any controlled substance as

defined in section 102 of the Controlled Substances Act (21

U.S.C. § 802);

(4) has been adjudicated as a mental defective or who has been

committed to a mental institution.

c. 18 U.S.C. section 844(d) makes it unlawful to transport or receive in

interstate or foreign commerce any explosive with the knowledge or

intent that it will be used to kill, injure, or intimidate any individual or

to unlawfully damage any property.

d. 18 U.S.C. section 844(e) makes it unlawful to use the mail, telephone,

etc. to make a bomb scare.

e. 18 U.S.C. section 844(f) makes it unlawful to damage federal property

by fire or explosive.

f. 18 U.S.C. section 844(g) makes it unlawful to possess an explosive in

an airport or federal building.

g. 18 U.S.C. section 844(i) makes it unlawful to damage by fire or

explosive any property used in or affecting interstate or foreign

commerce.

h. Attempted arson in the third degree in violation of sections 110 and

150.10 of the New York Penal Law is an aggravated felony under

section 101(a)(43)(E)(i) of the Act, even though the state crime lacks

the jurisdictional element in the applicable federal arson offense. Matter

of Bautista, 25 I&N Dec. 616 (BIA 2011).

2. An offense described in 18 U.S.C. sections 922(g)(1), (2), (3), (4), or (5), (j),

(n), (o), (p), or (r) or 18 U.S.C. section 924(b) or (h) relating to firearms

offenses - Section 101(a)(43)(E)(ii).
page 306 of 365

a. 18 U.S.C. section 922(g)(1) - (5) provides that it is unlawful for any

firearm or ammunition to be shipped in or received from interstate or

foreign commerce by any person who:

(1) has been convicted in any court of, a crime punishable by

imprisonment for a term not exceeding one year;

(2) is a fugitive from justice;

(3) is an unlawful user of or addicted to any controlled substance as

defined in section 102 of the Controlled Substances Act (21

U.S.C. § 802);

(4) has been adjudicated as a mental defective or who has been

committed to a mental institution;

(5) is an alien illegally or unlawfully in the U.S.;

(6) 18 U.S.C. section 922(g) also has a part (6) and a part (7), but

convictions for these offenses are not aggravated felonies.

b. An offense defined by state or foreign law may be classified as an

aggravated felony as an offense “described in” a federal statute

enumerated in section 101(a)(43) of the Act even if lacks the

jurisdictional element of “affecting interstate or foreign commerce.” 

Matter of Vasquez-Muniz 23 I&N Dec. 207 (BIA 2002); see also

Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009). Therefore,

possession of a firearm by a felon in violation of section 12021(a)(1) of

the California Penal Code (and perhaps any other similar state crime) is

an aggravated felony under section 101(a)(43)(E)(ii) of the Act because

it is an offense “described in” 18 U.S.C. section 922(g)(1). Matter of

Vasquez-Muniz 23 I&N Dec. 207 (BIA 2002).

(1) 18 U.S.C. section 922(j) makes it unlawful for any person to

receive, conceal, store, barter, sell, or dispose of any stolen

firearm or stolen ammunition, or pledge or accept as security for a

loan any stolen firearm or stolen ammunition which is moving in

interstate or foreign commerce knowing or having reasonable

cause to believe that the firearm or ammunition was stolen.

(2) 18 U.S.C. section 922(n) makes it unlawful for any person under

indictment for a crime punishable by imprisonment for a term

exceeding one year to ship in or receive from interstate or foreign

commerce any firearm or ammunition.
page 307 of 365

(3) 18 U.S.C. section 922(o) makes it unlawful to transfer or possess

a machine gun.

(4) 18 U.S.C. section 922(p) makes it unlawful to manufacture,

import, sell, ship, deliver, possess, transfer, or receive a firearm

not as detectable by a metal detector as the Security Exemplar.

(5) 18 U.S.C. section 922(r) makes it unlawful to assemble from

imported parts any semiautomatic rifle or any shotgun which is

identical to any rifle or shotgun prohibited from importation under

18 U.S.C. § 925(d)(3).

(6) 18 U.S.C. section 924(b) makes it unlawful to ship in or receive

from interstate or foreign commerce a firearm or any ammunition

with intent to commit an offense therewith.

(7) 18 U.S.C. section 924(h) makes it unlawful to transfer a firearm

knowing that it will be used to commit a crime of violence or drug

trafficking crime.

3. An offense described in section 5861 of the Internal Revenue Code of 1986

(relating to firearms offenses - 26 U.S.C. § 5851) - Section 101(a)(43)(E)(iii).

G. A crime of violence

1. (As defined in 18 U.S.C. section 16, not including a purely political offense),

for which the term of imprisonment is at least one year - Section

101(a)(43)(F).

a. 18 U.S.C. section 16 defines a “crime of violence” as:

(1) An offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another, or

(2) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.

(3) Not necessarily a felony. Section 101(a)(43)(F) of the Act refers

specifically to the federal definition of a “crime of violence” in 18

U.S.C. § 16, which requires that any crime falling within section

16(b) be a felony but contains no such requirement for offenses

falling within section 16(a). It further provides a specific

minimum sentence of “at least one year” for the offense. Thus,

this section has been found to include crimes that are not

“felonies” within the federal definition of that term.
page 308 of 365

(a) The Second Circuit found that, for sentence enhancement

purposes, a misdemeanor offense for which the alien had

been sentenced to a 1-year suspended sentence was an

aggravated felony. United States v. Pacheco, 225 F.3d 148

(2d Cir. 2000).

(b) The Fourth Circuit found that the plain language of section

101(a)(43)(F) contains no requirement that the offense have

been a felony, and concluded that an alien’s misdemeanor

conviction for sexual battery was for a crime of violence and

an aggravated felony. Wireko v. Reno, 211 F.3d 833 (4th

Cir. 2000).

(c) The fact that an offense of assault was classified as a

misdemeanor under state law did not preclude it from

qualifying as an aggravated felony for purposes of the

enhanced penalty provisions for the offense of illegal

reentry. United States v. Urias-Escobar, 281 F.3d 165 (5th

Cir. 2002).

(4) Mens rea. The Supreme Court held that a “crime of violence”

requires a higher mens rea than merely accidental or negligent

conduct. Leocal v. Ashcroft, 543 U.S. 1 (2004).

(a) In addition, the Third, Fourth, Sixth, Seventh, Ninth, and

Tenth Circuits have held that reckless crimes cannot be

crimes of violence under 18 U.S.C. § 16(b). JimenezGonzalez v. Mukasey, 548 F.3d 557 (7th Cir. 2008); United

States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008);

United States v. Portela, 469 F.3d 496 (6th Cir. 2006);

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006)

(en banc); Garcia v. Gonzales, 455 F.3d 465 (4th Cir. 2006);

Oyebanji v. Gonazles, 418 F.3d 260 (3d Cir. 2005). 

(b) Relying on United States v. Springfield, 829 F.2d 860 (9th

Cir. 1987), the Board held that the legislative history of 18

U.S.C. section 16 indicates that Congress did not limit the

term “crime of violence” to crimes of specific intent. Matter

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

(5) Where the state statute under which an alien has been convicted is

divisible, meaning it encompasses offenses that constitute crimes

of violence as defined under 18 U.S.C. section 16 and offenses

that do not, it is necessary to look to the record of conviction, and

to other documents admissible as evidence in proving a criminal

conviction, to determine whether the specific offense of which the
page 309 of 365

alien was convicted constitutes an aggravated felony as defined in

section 101(a)(43)(F) of the Act. Matter of Sweetser, 22 I&N

Dec. 709 (BIA 1999). 

(a) For purposes of determining whether an offense is a crime of

violence as defined in 18 U.S.C. section 16(b), it is

necessary to examine the criminal conduct required for

conviction, rather than the consequence of the crime, to find

if the offense, by its nature, involves “a substantial risk that

physical force against the person or property of another may

be used in the course of committing the offense.” Id. To

find that a criminal offense is a crime of violence under 18

U.S.C. section 16(b), a causal link between the potential for

harm and the “substantial risk” of “physical force” being

used must be present. Id.

(b) Analysis under 18 U.S.C. section 16(b) requires first that the

offense be a felony and, if it is, that the nature of the crime

as elucidated by the generic elements of the offense is such

that its commission would ordinarily present a risk that

physical force would be used against the person or property

of another irrespective of whether the risk develops or harm

actually occurs. While this generic or categorical approach

to 18 U.S.C. section 16(b) might occasionally include

consideration of the charging papers or jury instructions in

order to identify the “offense,” it does not extend to

consideration of the underlying facts of the conviction.

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

(6) Indeterminate sentences. Under Massachusetts law, an

indeterminate sentence is considered to be a sentence for the

maximum term imposed. Therefore, an alien convicted of a crime

of violence and sentenced to prison for a minimum of four and a

half years to a maximum of seven years is convicted of an

aggravated felony. Matter of D-, 20 I&N Dec. 827 (BIA 1994). 

(7) Modification of sentences. Where an alien’s sentence has been

modified to include a term of imprisonment following a violation

of probation, the resulting sentence is considered to be part of the

penalty imposed for the original underlying crime. Matter of Perez

Ramirez, 25 I&N Dec. 203 (BIA 2010).

(8) Manslaughter

(a) Involuntary Manslaughter - A respondent's conviction for

involuntary manslaughter under Illinois Rev. Stat. ch. 38.

para. 9-3(a), for which he was sentenced to 10 years in
page 310 of 365

prison, is a "crime of violence" and, therefore, an aggravated

felony. Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994). 

The Fourth Circuit has held that involuntary manslaughter

under Virginia law is not a crime of violence because it

requires only a mens rea of recklessness. Bejarano-Urrutia

v. Gonzales, 413 F.3d 444 (4th Cir. 2005).

(b) 2nd Degree Manslaughter - Second-degree manslaughter

under New York law, which required only that the

perpetrator recklessly cause the death of another, was not a

crime of violence under 18 U.S.C. section 16(b). Jobson v.

Ashcroft, 326 F.3d 367 (2d Cir. 2003). Focusing on the verb

“use” in 18 U.S.C. § 16(b), the court stated that the statute

contemplates only the risk of an intentional use of force. Id.

(c) 1st Degree Manslaughter - Because first-degree

manslaughter requires proof of intent to cause serious

physical injury or death, it differs significantly from the

reckless conduct required for second-degree manslaughter,

which the Jobson court found “encompasse[d] many

situations”, the offense of manslaughter in the first degree in

violation of section 125.20 of the New York Penal Law is a

crime of violence under 18 U.S.C. section 16(b) and is

therefore an aggravated felony under section 101(a)(43)(F)

of the Act. Matter of Vargas, 23 I&N Dec. 651 (BIA 2004).

(d) Vehicular Manslaughter -In Oyebanji v. Gonzales, 418 F.3d

260 (3rd Cir. 2005), the parties agreed that vehicular

manslaughter under New Jersey law is not a crime of

violence under 18 U.S.C. section 16(a). The court held that

the reasoning in Leocal, 543 U.S. 1 (2004), suggests that the

offense is not a crime of violence under 18 U.S.C. section

16(b) as the offense requires recklessness. The Ninth Circuit

held in Lara-Cazares v. Gonzales, 408 F.3d 1217 (9th Cir.

2005), that pursuant to the reasoning in Leocal, a conviction

under section 191.5(a) of the California Penal Code for

gross vehicular manslaughter while intoxicated is not a

crime of violence, because the mens rea is gross negligence

and the intentional use of a vehicle to cause injury is not an

element of the offense.

(9) Arson - An alien who was convicted of arson in the first degree

under the law of Alaska and sentenced to 7 years imprisonment

with 3 years suspended was convicted of a “crime of violence”

within the meaning of section 101(a)(43)(F) of the Act, and

therefore is deportable under section 237(a)(2)(A)(iii) of the Act

as an alien convicted of an aggravated felony. Matter of Palacios,
page 311 of 365

22 I&N Dec. 434 (BIA 1998). In its analysis, the Board stated,

“We find that the respondent’s act of arson in the first degree, by

its very nature, requires a substantial risk of physical force against

another person or property. (Citations omitted). First, we note

that the intentional starting of a fire or causing an explosion

ordinarily would lead to the substantial risk of damaging property

of another. Not only is there a risk to items belonging to others

that are on or in the property, i.e., such as items left in a store,

there always exists the risk that the fire will spread beyond the

original intended property. Secondly, since there is a risk that the

fire or explosion will encroach upon another structure and that

structure may be occupied, arson involves a substantial risk to

another person. Moreover, there is a real risk that the people

responding to the fire, i.e., public employees who respond to

emergencies, will be injured while extinguishing the fire or

investigating the fire scene. Accordingly, we find that the

respondent’s conviction for arson in the first degree under Alaska

law is a “crime of violence” within the meaning of the 18 U.S.C.

section 16, and correspondingly, an aggravated felony under

section 101(a)(43)(F) of the Act.”

(10) Assault - The offense of third-degree assault in violation of

section 53a-61(a)(1) of the Connecticut General Statutes, which

involves the intentional infliction of physical injury upon another,

is a crime of violence under 18 U.S.C. section 16(a). Matter of

Martin, 23 I&N Dec. 491 (BIA 2002). But see Chrzanoski v.

Ashcroft, 327 F.3d 188 (2d Cir. 2003)(finding that an offense

under section 53a-61(a)(1) of the Connecticut General Statutes is

not a crime of violence). In United States v. Heron-Salinas, 566

F.3d 898, (9th Cir. 2009), the court, in the criminal context, found

that a conviction for assault with a firearm under Cal. Penal Code

section 245(a)(1) is a crime of violence under 18 U.S.C. § 16(a),

and (b).

(11) Willful infliction of corporal injury - A misdemeanor conviction

for willful infliction of corporal injury on a spouse in violation of

section 273.5(a) of the California Penal Code which resulted in a

sentence to a term of imprisonment for one year qualifies

categorically as a conviction for a “crime of violence” within the

meaning of 18 U.S.C. § 16(a) (2006). Matter of Perez Ramirez, 25

I&N Dec. 203 (BIA 2010).

(12) Solicitation to commit assault - The Ninth Circuit found that

solicitation to commit assault by means of force likely to produce

great bodily injury, in violation of California Penal Code section

653f(a), and solicitation to commit rape by force, in violation of

California Penal Code section 653f(c), are crimes of violence. 
page 312 of 365

Prakash v. Holder, 579 F.3d 1033 (9th Cir. 2009). The definition

of crime of violence in 18 U.S.C. section 16(b) turns on the risk of

physical force as a consequence of the criminal conduct at issue,

not on the timing of the force. The risk of violence is created and

exists from the time of the solicitation. Id. 

(13) Drunk Driving

(a) History lesson - The Board originally held that the use of

physical force is not an element of drunk driving, but driving

under the influence vastly increases the probability that the

driver will injure someone in an accident. Therefore, drunk

driving, by its nature, presents a serious risk of physical

injury and therefore qualifies as a crime of violence. 

Various circuit courts disagreed with these decisions,

finding that there must be a substantial likelihood that the

perpetrator will intentionally employ physical force against

another’s person or property in the course of committing the

offense. United States v. Chapa-Garza, 243 F.3d 921 (5th

Cir. 2001); United States v. Trinidad-Aquino, 259 F.3d 1140

(9th Cir. 2001).

(b) Present law - In Leocal v. Ashcroft, 543 U.S. 1 (2004), the

Supreme Court held that the alien's DUI offense was not a

crime of violence under 18 U.S.C. section 16(a) as the

statute's key phrase, the use of physical force against the

person or property of another, suggested a higher degree of

intent than negligent or merely accidental conduct. The DUI

conviction was not a crime of violence under 18 U.S.C.

section 16(b) for similar reasons: it required a higher mens

rea than the merely accidental or negligent conduct involved

in a DUI offense. The ordinary meaning of the term “crime

of violence,” combined with 18 U.S.C. section 16's

emphasis on the use of physical force against another person

(or the risk of having to use such force in committing a

crime), suggested a category of violent, active crimes that

did not include DUI offenses. Thus, 18 U.S.C. section 16

could not be read to include the alien's conviction for DUI

causing serious bodily injury under Florida law.

i) Leocal left open the question of whether an offense

that requires proof of the reckless use of force against a

person or property of another qualifies as a crime of

violence. Leocal v. Ashcroft, 543 U.S. 1, 13 (2004). 

(14) Intoxication Assault - The 5th Circuit found that intentional use of

force was not an element of the crime of Texas intoxication
page 313 of 365

assault and this offense did not qualify as a “crime of violence”

for sentence enhancement purposes. United States v. VargasDuran, 356 F.3d 598 (5th Cir. 2004).

(15) Criminally Negligent Child Abuse - An alien convicted of

criminally negligent child abuse under sections 18-6-401(1) and

(7) of the Colorado Revised Statutes, whose negligence in leaving

his stepson alone in a bathtub resulted in the child’s death, was

not convicted of a crime of violence under 18 U.S.C. § 16(b)

because there was not “substantial risk that physical force” would

be used in the commission of the crime. Matter of Sweetser, 22

I&N Dec. 709 (BIA 1999).

(16) Sexual Abuse of a Child - When an adult attempts to sexually

touch a child under the age of consent, there is always a

substantial risk that physical force will be used to ensure the

child's compliance and crimes of sexual abuse of a child or child

molestation are crimes of violence. See United States v. Bauer,

990 F.2d 373 (8th Cir. 1993); United States v. Rodriguez, 979

F.2d 138 (8th Cir. 1992); United States v. Reyes-Castro, 13 F.3d

377 (10th Cir. 1993). The Board has held that statutory rape is a

crime of violence for the same reason. Matter of B-, 21 I&N Dec.

287 (BIA 1996).

(a) The Ninth Circuit held that felony unlawful sexual

intercourse with person under 18 did not qualify as a “crime

of violence,” because it does not “‘by its nature, involve [] a

substantial risk that [violent] physical force against the

person or property of another may be used in the course of

committing the offense.’” Valencia v. Gonzales, 439 F.3d

1046 (9th Cir. 2006), replacing 431 F.3d 673 (9th Cir.

2005).

(b) Conviction of child molestation under Georgia Code section

16-6-4(a) constitutes a crime of violence under U.S.

Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). United States v.

Olalde-Hernandez, 630 F.3d 372 (5th Cir. 2011).

(17) Burglary

(a) Burglary of a Habitation - In an appeal of a sentence in a

criminal case, the 5th Circuit held that burglary of a

habitation (Texas Penal Code section 30.02) is per se a

crime of violence under 18 U.S.C. section 16(b). United

States v. Guadardo, 40 F.3d 102 (5th Cir. 1994).
page 314 of 365

(b) Burglary of a Vehicle or Nonresidential Structure - The

burglary of a nonresidential building or the burglary of a

vehicle under the Texas Penal Code often involves the

application of destructive physical force to the property of

another. Therefore, both offenses are crimes of violence

under 18 U.S.C. section 16(b). United States v. RodriguezGuzman, 56 F.3d 18 (5th Cir. 1995); overruling recognized

by United States v. Turner, 305 F.3d 349 (5th Cir. 2002)

(describing new analysis of “crime of violence” established

in United States v. Charles, 301 F.3d 309 (5th Cir. 2002). 

The Seventh Circuit has held that burglary of an automobile

under Illinois law is not a crime of violence under 18 U.S.C.

section 16(b). Solorzano-Patlan v. INS, 207 F.3d 869 (7th

Cir. 2000). The Ninth Circuit has held that vehicular

burglary under California law is not a crime of violence

under 18 U.S.C. section 16(b) because it can be

accomplished without physical force. Sareang Ye v. INS,

214 F.3d 1128 (9th Cir. 2000).

(18) Trespass - A trespass conviction under Colorado law, under which

a “person commits the crime of first degree criminal trespass if he

knowingly and unlawfully enters or remains in a dwelling or if he

enters any motor vehicle with intent to steal anything of value” is

a crime of violence because entering or remaining in the dwelling

of another creates a substantial risk that physical force will be

used against the residents in the dwelling. Even when the

perpetrator has illegally entered a nonresidential building, there is

a substantial risk of physical force being used against the property

of another. United States v. Delgado-Enriquez, 188 F.3d 592 (5th

Cir. 1999).

(19) Unauthorized Use of a Vehicle - The Fifth Circuit stated, “the

unauthorized use of a vehicle likewise carries a substantial risk

that the vehicle might be broken into, ‘stripped,’ or vandalized, or

that it might become involved in an accident” and concluded that

the unauthorized use of a motor vehicle constitutes a “crime of

violence” under 18 U.S.C. section 16(b). United States v. GalvanRodriguez, 169 F.3d 217 (5th Cir. 1999); Matter of Brieva-Perez,

23 I&N Dec. 766 (BIA 2005). The Ninth Circuit held that a

conviction for carjacking, in violation of California Penal Code

section 215, is categorically an aggravated felony crime of

violence under 18 U.S.C. section 16(a). Nieves-Medrano v.

Holder, 590 F.3d 1057 (9th Cir. 2010). The Fifth Circuit held that

a Texas conviction for unauthorized use of a motor vehicle

pursuant to Texas Penal Code Ann. section 31.07 is not an

aggravated felony, crime of violence. United States v.

Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009). See also
page 315 of 365

Nguyen v. Holder, 571 F.3d 524 (6th Cir. 2009)(finding that a

conviction under California Penal Code section 487, for grand

theft of an automobile, is not for an aggravated felony/crime of

violence as defined in 18 U.S.C. section 16(b); United States v.

Sanchez-Garcia, 501 F.3d 1208 (10th Cir. 2007)(Arizona

unlawful use of means of transportation is not a Crime of

Violence). 

(20) Carrying a Firearm - Although unlawfully carrying a firearm on

premises which have been licensed to sell alcoholic beverages is a

felony under Texas Penal Code section 46.02, the Fifth Circuit

found that it is not a crime of violence. U. S. v. HernandezNeave, 291 F.3d 296 (5th Cir. 2001).

(21) Stalking - A stalking offense for harassing conduct in violation of

section 646.9(b) of the California Penal Code, which proscribes

stalking when there is a temporary restraining order, injunction, or

any other court order in effect prohibiting the stalking behavior, is

a crime of violence under 18 U.S.C. section 16(b) and, if a

sentence of a year or longer is imposed, is an aggravated felony

under section 101(a)(43)(F) of the Act. Matter of Malta, 23 I&N

Dec. 656 (BIA 2004), rev’d by Malta-Espinoza v. Gonzales, 47 8

F.3d 1080 (9th Cir. 2007). The Board noted that the statute in

question prohibited “following or harassing another person,”

found that it was divisible, and therefore looked to the record of

conviction to determine that the respondent conviction was for

conduct involving harassing, rather than following. It found that a

substantial risk of the use of force exists when a person makes a

credible threat that places another in fear for his or her safety

through a course of action that “seriously alarms, annoys,

torments, or terrorizes the person.” While it is possible to violate

the stalking statute without the use of force, such as through the

use of a computer, a telephone, or mail, the Board observed that

when a “course of conduct” that is both serious and continuing in

nature is coupled with a “credible threat” to another’s “safety,”

there is a substantial risk that physical force may be used, at least

recklessly, over the duration of the commission of the crime. The

Board added, “the fact that the respondent violated the California

stalking statute despite the existence of a court order prohibiting

the behavior demonstrates a level of determination that further

increases the severity of the interaction and the risk of the use of

physical force. Moreover, when a person engages in stalking,

there is a substantial risk that the individual being stalked will

take exception and, as a result, cause the perpetrator to use force

in self-defense or to further effectuate the harassment.
page 316 of 365

(22) Menacing. The Tenth Circuit has upheld the Board’s finding that

a conviction for a violation of Colorado’s menacing statute is a

conviction for a crime of violence under 18 U.S.C. § 16(a), and,

therefore, an aggravated felony. Damaso-Mendoza v. Att’y Gen.,

653 F.3d 1245 (10th Cir. 2011).

H. Theft, burglary, and receipt of stolen property

1. A theft offense (including receipt of stolen property) or burglary offense for

which the term of imprisonment imposed is at least one year.

a. Section 101(a)(43)(G) defines as aggravated felonies theft or burglary

offenses for which the sentence is “at least 1 year” without further

qualification. Therefore, it seems to include crimes that are not

“felonies” within the federal definition of that term.

(1) The Third Circuit found, for sentence enhancement purposes, that

a misdemeanor theft conviction for which the term of

imprisonment is 1 year is an aggravated felony. United States v.

Graham, 169 F.3d 787 (3d Cir. 1999).

b. Theft.

(1) Although “theft” is a “popular name” for larceny, the term “theft”

is generally considered in federal law “to be broader than

‘common law larceny.’” Under the common law, “larceny”

requires the intent to permanently deprive the owner of possession

or use of his property. Congress’ use of the term “theft” is

therefore broader than the common-law definition of that term. 

Specifically, a “theft offense” under section 101(a)(43)(G) of the

Act does not require as a statutory element the specific intent to

permanently deprive an owner of his property, an element that

was present in the common-law definition of larceny. Rather, a

taking of property constitutes a “theft” whenever there is criminal

intent to deprive the owner of the rights and benefits of

ownership, even if such deprivation is less than total or

permanent. Matter of V-Z-S-, 22 I&N Dec. 1338 (BIA 2000). 

Not all takings of property, however, will meet this standard

because some takings entail a de minimis deprivation of

ownership interests. Id.

(2) A conviction for unlawful driving and taking of a vehicle in

violation of section 10851 of the California Vehicle Code, which

makes guilty a person who drives or takes a vehicle not his or her

own, without the consent of the owner thereof, and with intent

either to permanently or temporarily deprive the owner thereof of

his or her title to or possession of the vehicle, whether with or
page 317 of 365

without intent to steal the vehicle, is a “theft offense” under

section 101(a)(43)(G) of the Act. Matter of V-Z-S-, 22 I&N Dec.

1338 (BIA 2000).

(3) The Ninth Circuit has held that a conviction for grand theft, in

violation of California Penal Code section 487(a), is not

categorically an aggravated felony because it defines grand theft

as the taking of “money, labor, or real or personal property . . .

exceeding four hundred dollars” and the generic theft definition

does not include theft of labor. Ramirez-Villalpando v. Holder,

601 F.3d 891 (9th Cir. 2010) (holding that the alien’s conviction

was an aggravated felony under the modified categorical approach

because the criminal record indicated that he was convicted of

theft of personal property, not labor), opinion amended and

superseded on denial of hearing en banc by Ramirez-Villalpando

v. Holder, 645 F.3d 1035 (9th Cir. 2011). 

(4) A conviction for welfare fraud in violation of section 40-6-15 of

the General Laws of Rhode Island is not a theft offense. Matter of

Garcia-Madruga, 24 I&N Dec. 436, 441 (BIA 2008). The Board

narrowed the definition of “theft,” finding that it requires a taking

of property without consent whereas fraud involves fraudulently

obtained consent. Id.; see also Carrillo-Jaime v. Holder, 572 F.3d

747 (9th Cir. 2009). 

(5) Aiding and abetting theft. The Supreme Court held that a theft

offense under INA section 101(a)(43)(G) includes the crime of

“aiding and abetting” a theft offense. Gonzales v. DuenasAlvarez, 549 U.S. 183 (2007). In this case, the Court vacated a

Ninth Circuit case, Penuliar v. Ashcroft, 395 F.3d 1037 (2005), in

which the Ninth Circuit concluded that a conviction for unlawful

driving or taking of a vehicle in violation of California Vehicle

Code section 10851(a) is not categorically a theft offense under

section 101(a)(43)(G) of the Act because the California provision,

which includes accomplice liability, is broader than the generic

definition of “theft offense.” The Supreme Court observed that all

states and the federal government have “expressly abrogated the

distinction” among principals and aiders and abettors. Id. at 820.

c. Stolen property.

(1) In Matter of Bahta, 22 I&N Dec. 1381 (BIA 2000), the Board

found that the “receiving stolen property” parenthetical in section

101(a)(43)(G) of the Act was intended to clarify that the term

“theft” was not being used in its limited, traditional sense to

require proof that the offender was involved in the actual taking of

the property at issue. First, the Board noted that the modern view
page 318 of 365

of theft generally treats as equivalent those who knowingly

receive and those who knowingly possess stolen property. The

commentaries to the Model Penal Code explain that whether the

term used is receiving, possessing, buying, or concealing, “[i]t

seems clear that the essential idea behind these and other terms is

acquisition of control, whether in the sense of physical dominion

or of legal power to dispose.” Model Penal Code section 223.6,

cmt. 2, at 235. Accordingly, the Model Penal Code definition of

“receiving” is “broad” and includes “the retention of possession

[of stolen property].” Id. Moreover, under the Model Penal Code,

one “is guilty of theft if he ‘receives, retains, or disposes of

movable property of another’ with the requisite culpability.” Id.

cmt. 1, at 234. Second, the Board observed that nearly all of the

federal “receipt” of stolen property provisions reflect an

application of this well-understood meaning of “receiving” stolen

property and include “possession” offenses within their scope. 

Finally, the Board stated that the focus is not just on the

parenthetical in section 101(a)(43)(G) of the Act, but also on

whether an offense is a “theft” offense within this provision. To

read the parenthetical in a restricted manner would be to assume

that Congress intended to apply a technical distinction within the

“theft” definition set forth in section 101(a)(43)(G) that is

inconsistent both with the modern view of “theft” offenses and

with the consolidation and definition of theft and related offenses

in Chapters 31 and 113 of Title 18 of the United States Code. The

Board concluded that the reference to “receipt of stolen property”

in section 101(a)(43)(G) of the Act was intended in a generic

sense to include the category of offenses involving knowing

receipt, possession, or retention of property from its rightful

owner. Therefore, a conviction for attempted possession of stolen

property, in violation of sections 193.330 and 205.275 of the

Nevada Revised Statutes, is a conviction for an attempted “theft

offense (including receipt of stolen property),” and therefore an

aggravated felony, within the meaning of sections 101(a)(43)(G)

and (U) of the Act (provided, of course, that a sentence of a year

or more was imposed).

(2) A conviction for receipt of stolen property under California Penal

Code section 496(a) with a sentence of imprisonment of at least 1

year, is categorically a receipt of stolen property aggravated felony

under section 101(a)(43)(G) of the Act. Matter of Cardiel, 25 I&N

Dec. 12 (BIA 2009). 

d. Burglary

(1) The offense of burglary of a vehicle in violation of section

30.04(a) of the Texas Penal Code Annotated is not a “burglary
page 319 of 365

offense” within the definition of an aggravated felony in section

101(a)(43)(G) of the Act. Matter of Perez, 22 I&N Dec. 1325

(BIA 2000).

(2) In this decision, the Board stated that in the absence of a

definition of the term “burglary offense” in the Act, or some other

clear expression of congressional intent, the logical starting point

is the definition of a burglary set forth by the United States

Supreme Court in Taylor v. United States, 495 U.S. 575 (1990),

which states that for purposes of sentence enhancement under 18

U.S.C. § 924(e), the term “burglary” as used in 18 U.S.C. §

924(e)(2)(B)(ii) means an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a

crime. In Taylor, the Supreme Court specifically excluded from

the definition of generic burglary statutes which include breaking

and entering places other than buildings, such as booths, tents,

vehicles, boats, vessels, and railroad cars. In its decision, the

Taylor court noted that Congress must have thought that certain

property crimes, like burglary, so often presented a risk of injury

to persons or were so often committed by career criminals that

they should be included in the enhancement statute even though

they do not necessarily involve the use or threat of force against a

person. It also noted that Congress presumably realized that “runof-the-mill” burglaries involving an unarmed offender, an

unoccupied building, and no use or threat of force presented a

sufficiently “serious potential risk” to count toward enhancement. 

All of this involves a determination that burglary must somehow

pose a substantial risk that physical force will be used against a

person before it can be considered in enhancing a sentence. The

court concluded that burglaries of places other than buildings

posed much less risk that physical force will be used against a

person and therefore excluded them from the generic definition of

burglary.

(3) The Board concluded Matter of Perez, 22 I&N Dec. 1325 (BIA

2000), by saying, “The question of the precise scope of the term

“burglary offense” under section 101(a)(43)(G) has been neither

adequately developed nor fully argued in this appeal. Here, we

simply hold that burglary of a vehicle under this particular Texas

statute is not a burglary offense under section 101(a)(43)(G).”

I. Demand for or receipt of ransom

1. An offense described in 18 U.S.C. sections 875, 876, 877, or 1202 relating to

the demand for or receipt of ransom - Section 101(a)(43)(H).
page 320 of 365

a. 18 U.S.C. section 875(a) makes it a crime to transmit a ransom demand

in interstate or foreign commerce.

b. 18 U.S.C. sections 875(b) & (c) makes it a crime to transmit in

interstate or foreign commerce a threat to kidnap or to injure another. 

Since these offenses do not relate to a demand for ransom, they do not

appear to be aggravated felonies. However, by reference to the other

portions of the definition, it appears that the words “relating to the

demand for or receipt of ransom” in section 101(a)(43)(H) are

illustrative only and a violation of 18 U.S.C. sections 875(b) or (c)

would be an aggravated felony.

c. 18 U.S.C. section 876 makes it a crime to mail a ransom demand.

d. 18 U.S.C. section 877 makes it a crime to mail a ransom demand from a

foreign country.

e. 18 U.S.C. section 1202 makes it a crime to knowingly receive, possess,

or dispose of money which at any time has been delivered as ransom in

connection with a violation of 18 U.S.C. 1201 (kidnapping).

J. Child pornography

1. An offense described in 18 U.S.C. sections 2251, 2251A, or 2252 (relating to

child pornography) - Section 101(a)(43)(I).

a. 18 U.S.C. section 2251 makes it unlawful to make or advertise child

pornography.

b. 18 U.S.C. section 2251A makes it unlawful to buy or sell children for

child pornography.

c. 18 U.S.C. section 2252 makes it unlawful to send child pornography or

receive same in interstate or foreign commerce.

K. Racketeering or gambling

1. An offense described in 18 U.S.C. section 1962 (relating to racketeer

influenced corrupt organizations) or an offense described in 18 U.S.C.

section 1084 (if it is a second or subsequent offense) or 18 U.S.C. section

1955 (relating to gambling offenses) for which a sentence of one year or more

may be imposed - Section 101(a)(43)(J).

a. 18 U.S.C. section 1963 provides that a violation of 18 U.S.C. section

1962 may be punished by not more than 20 years (in some

circumstances, life imprisonment). Therefore, it would appear that one

year or more may be imposed for any violation of 18 U.S.C. section
page 321 of 365

1962. Perhaps the reference to a minimum potential sentence is for the

violation of a state statute that is the equivalent of 18 U.S.C. section

1962.

L. Prostitution, slavery, or involuntary servitude 

1. An offense related to the owning, controlling, managing, or supervising of a

prostitution business - Section 101(a)(43)(K)(i).

2. An offense described in 18 U.S.C. sections 2421, 2422, or 2433 (relating to

transportation for the purpose of prostitution) if committed for commercial

advantage - Section 101(a)(43)(K)(ii).

a. The categorical approach to determining whether an offense qualifies as

a removable offense does not apply to a determination of whether a

violation of 18 U.S.C. section 2422(a) was committed for “commercial

advantage” and, therefore, constitutes an aggravated felony under

section 101(a)(43)(K)(ii), where “commercial advantage” is not an

element of the offense and the evidence relating to that issue is not

ordinarily likely to be found in the record of conviction. Matter of

Gertsenshteyn, 24 I&N Dec. 111 (BIA 2007). But see Gertsenshteyn v.

U.S. Dep’t of Justice, 544 F.3d 137 (2d Cir. 2008) (overruling Matter of

Gertsenshteyn). 

3. An offense described in 18 U.S.C. sections 1581, 1582, 1583, 1584, or 1588

relating to peonage, slavery, and involuntary servitude - Section

101(a)(43)(K)(iii).

M. Treason or transmitting national defense information

1. An offense described in 18 U.S.C. section 793 relating to gathering or

transmitting national defense information, 18 U.S.C. section 798 relating to

disclosure of classified information, 18 U.S.C. section 2153 relating to

sabotage, or 18 U.S.C. sections 2381 or 2382 relating to treason - Section

101(a)(43)(L)(i).

2. An offense described in section 601 of the National Security Act of 1947 (50

U.S.C. section 421) relating to protecting the identity of undercover

intelligence agents - Section 101(a)(43)(L)(ii).

N. An offense that involves fraud or deceit in which the loss to the victim or victims

exceeds $10,000 or an offense related to tax evasion 

1. An alien who was convicted of submitting a false claim with intent to defraud

arising from an unsuccessful scheme to obtain $15,000 from an insurance

company was convicted of an “attempt” to commit a fraud in which the loss

to the victim exceeded $10,000 within the meaning of section 101(a)(43)(U)
page 322 of 365

of the Immigration and Nationality Act and therefore is deportable under

section 241(a)(2)(A)(iii) of the Act as an alien convicted of an aggravated

felony. Matter of Onyido, 22 I&N Dec. 552 (BIA 1999). The Board stated,

“We disagree with the respondent’s contention that section 101(a)(43)(U) of

the Act requires that the victim suffer an actual loss which exceeds $10,000. 

By its very nature, an attempt involves an unsuccessful effort to commit a

crime... Here, the offense for which the respondent was convicted involved

an attempt to obtain $15,000 from the insurance company through fraud and

deceit. The respondent’s actions support a conviction for attempted fraud

which is a lesser included offense within a conviction for fraud under Indiana

law. The fact that the respondent failed to obtain the money is of no

consequence under section 101(a)(43)(U) of the Act, which prescribes

deportability as an aggravated felon for aliens convicted of an attempt or

conspiracy to commit an offense described in section 101(a)(43) of the Act.” 

Because of its decision regarding section 101(a)(43)(U), the Board did not

discuss the IJ’s additional finding that the respondent was also deportable as

an aggravated felon under section 101(a)(43)(M)(i), as an alien convicted of a

fraud or deceit in which the loss to the victim exceeds $10,000. See also

Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009)(holding that removal under

section 101(a)(43)(U) is not necessarily a lesser included offense of section

101(a)(43)(M), and they must be charged separately).

a. Embezzling more than $10,000 from the United States was an

aggravated felony within the meaning of the exception from waiver of

inadmissiblity since the federal government qualified as a “victim”

within the definition of an aggravated felony. Balogun v. Att’y Gen.,

425 F.3d 1356 (11th Cir. 2005). 

b. Theft by deception must satisfy the elements of both sections

101(a)(43)(G) and 101(a)(43)(M)(i) to constitute an aggravated felony. 

Nugent v. Ashcroft, 367 F.3d 162 (3d Cir. 2004).

c. Restitution. The Third Circuit has held that the amount of restitution is

not controlling to determine the amount of loss, but may be used to

determine the amount of loss if the conviction record is unclear. 

Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. 2003). 

d. In a case involving an aggravated felony under section 101(a)(43)(M)(i)

as an “offense that involves fraud or deceit in which the loss to the

victim or victims exceeds $10,000,” the Board held that: (1) the

$10,000 loss threshold does not have to be an element of the offense;

and (2), therefore, IJs are not confined to using the categorical or

modified categorical approaches in determining loss to the victim but,

rather, may consider any admissible evidence. Matter of Babaisakov,

24 I&N Dec. 306 (BIA 2007).
page 323 of 365

(1) The Ninth Circuit held that the definition of an aggravated felony

at section 101(a)(43)(M)(i) includes tax offenses other than those

described in 26 U.S.C. section 7201, the provision specifically

enumerated in the aggravated felony definition at

section 101(a)(43)(M)(ii) of the Act. Kawashima v. Holder, 593

F.3d 979 (9th Cir. 2010), opinion withdrawn and superseded on

denial of rehearing by 615 F.3d 1043. The court, applying the

Supreme Court’s holding in Nijhawan v. Holder, 129 S.Ct. 2294

(2009), found that the alien’s conviction for subscribing to a false

statement on a tax return, in violation of 26 U.S.C.

section 7206(1), constituted an aggravated felony. The Supreme

Court granted certiorari in Kawashima to determine whether

convictions for filing, and aiding and abetting in filing, a false

statement on a corporate tax return are aggravated felonies under

section 101(a)(43)(M)(I) of the Act. Kawashima v. Holder, 131

S. Ct. 2900 (May 23, 2011). 

(2) The Board ruled that conspiracy offenses can permissibly be

aggravated felonies under sections 101(a)(43)(M)(i) and (U) of the

Act where the substantive crime that was the object of the

conspiracy was an offense that involved “fraud or deceit” and

where the potential loss to the victim or victims exceeded

$10,000. Matter of S-I-K-, 24 I&N Dec. 324 (BIA 2007); see also

Pierre v. Holder, 588 F.3d 767 (2d Cir. 2009)(101(a)(43)(U)) for

attempt or conspiracy is not necessarily a lesser included offense

of section 101(a)(43)(M) and they must be charged separately).

2. An offense that is described in section 7201 of the Internal Revenue Code of

1986 (relating to tax evasion) in which the revenue loss to the Government

exceeds $200,000; section 101(a)(43)(M)(ii).

O. Alien smuggling

1. An offense related to alien smuggling described in 18 U.S.C. section

274(a)(1)(A) or (a)(2) (relating to alien smuggling), except in the case of a

first offense for which the alien has affirmatively shown that the alien

committed the offense for the purpose of assisting, abetting, or aiding only

the alien's spouse, child, or parent (and no other person) to violate a provision

of this Act.

a. A conviction for transporting an illegal alien in violation of section

274(a)(1)(A)(ii) of the Act is an aggravated felony, as defined in section

101(a)(43)(N) of the Act, and, therefore, it supports a finding of

deportability under section 237(a)(2)(A)(iii) of the Act. The

parenthetical expression “relating to alien smuggling” does not limit

deportable offenses to those involving smuggling. Matter of RuizRomero, 22 I&N Dec. 486 (BIA 1999).
page 324 of 365

b. An alien convicted of an offense described in section 275(a) of the Act

(illegal entry)is not convicted of an aggravated felony as that term is

defined in section 101(a)(43)(N) of the Act, which specifically refers to

those offenses relating to alien smuggling described in sections

274(a)(1)(A) and (2) of the Act. Matter of Alvarado-Alvino, 22 I&N

Dec. 718 (BIA 1999). A violation of section 275(a) may be an

aggravated felony under the circumstances described in section

101(a)(43)(O). Id.

P. Illegal reentry

1. An offense described in section 275(a) [entering or attempting to enter the

U.S. without inspection or by fraud] or 276 [reentry after exclusion,

deportation, or removal] committed by an alien who was previously deported

on the basis of a conviction described in another subparagraph of section

101(a)(43) - Section 101(a)(43)(O).

Q. Falsely making, forging, counterfeiting, mutilating, or altering a passport or

instrument

1. An offense which either is falsely making, forging, counterfeiting, mutilating,

or altering a passport or instrument in violation of 18 U.S.C. section 1543 or

is described in 18 U.S.C. section 1546(a) (relating to document fraud) and for

which the term of imprisonment is at least 12 months, except in the case of a

first offense for which the alien has affirmatively shown that the alien

committed the offense for the purpose of assisting, abetting, or aiding only

the alien's spouse, child, or parent (and no other person) to violate a provision

of this Act - Section 101(a)(43)(P).

R. Failure to appear for service of sentence

1. An offense relating to a failure to appear by a defendant for service of

sentence if the underlying offense is punishable by imprisonment for a term

of 5 years or more - Section 101(a)(43)(Q).

S. Commercial bribery, counterfeiting, forgery, or trafficking in vehicles

1. An offense relating to commercial bribery, counterfeiting, forgery, or

trafficking in vehicles the identification numbers of which have been altered

for which the term of imprisonment is at least one year - Section

101(a)(43)(R). 

a. The crime of bribery of a public official in violation of 18 U.S.C.

section 201(b)(1)(A)(2006) is not an offense “relating to” commercial

bribery and is therefore not an aggravated felony under section

101(a)(43)(R). Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010).
page 325 of 365

T. Obstruction of justice, perjury, or bribery of a witness

1. An offense relating to obstruction of justice, perjury or subornation of

perjury, or bribery of a witness, for which the term of imprisonment is at least

one year - Section 101(a)(43)(S).

a. A respondent’s conviction pursuant to 18 U.S.C. section 3 (accessory

after the fact) and sentence to at least one year establishes his

deportability as an alien convicted of an aggravated felony because the

offense of accessory after the fact falls within the definition of an

obstruction of justice crime under section 101(a)(43)(S) of the Act. 

Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997).

b. A conviction for misprision of a felony under 18 U.S.C. section 4 does

not constitute a conviction for an aggravated felony under section

101(a)(43)(S) of the Act as an offense relating to obstruction of justice

because the crime does not require as an element either active

interference with proceedings of a tribunal or investigation, or action or

threat of action against those who would cooperate in the process of

justice. Matter of Espinoza, 22 I&N Dec. 889 (BIA 1999). The Third

Circuit takes a broader reading of “related to” obstruction of justice and

has found that a “causal connection” may suffice to make the separate

crimes related. Denis v. Att’y Gen., 633 F.3d 201 (3d Cir. 2011).

c. A conviction for perjury in violation of the California Penal Code

constitutes a conviction for an aggravated felony under section

101(a)(43)(S) of the Act. Matter of Martinez-Recinos, 23 I&N Dec.

175 (BIA 2001).

d. In Hoang v. Holder, 641 F.3d 1157 (9th Cir. 2011), the Ninth Circuit

held that an alien’s misdemeanor conviction for rendering criminal

assistance in violation of Washington Revised Code section 9A.76.080

was not a crime related to obstruction of justice. 

U. Failure to appear before a court pursuant to a court order to answer to or dispose of

a charge of a felony 

1. An offense relating to a failure to appear before a court pursuant to a court

order to answer to or dispose of a charge of a felony for which a sentence of 2

years imprisonment or more may be imposed - Section 101(a)(43)(T).

V. An attempt or conspiracy to commit any such act described above

1. The term “conspiracy” in section 101(a)(43)(U) of the Act is not limited to

conspiracies that require the commission of an overt act in furtherance of the
page 326 of 365

conspiracy by one of the conspirators. Matter of Richardson, 25 I&N Dec.

226 (BIA 2010). 

2. An alien who was only convicted of conspiracy to commit an aggravated

felony, but was not also convicted of the substantive aggravated felony

offense, may not be found removable for that underlying substantive offense,

even though the record of conviction shows that the conspirators actually

committed the substantive offense. Matter of Richardson, 25 I&N Dec. 226,

227 (BIA 2010) (finding that the IJ erred in sustaining the charge that the

respondent was convicted of a theft offense under section 101(a)(43)(G) of

the Act, because such an underlying substantive offense is not necessarily

included in a conspiracy). The alien is removable, however, on the basis of

the conspiracy conviction under section 101(a)(43)(U) of the Act. Id. 

3. The Seventh Circuit held in Familia-Rosario v. Holder, --- F.3d ----, No. 10-

3433, 2011 WL 3715279 (7th Cir. Aug. 24, 2011), that a conviction for

aiding and abetting conspiracy, the object of which was the importation of

any alien for the purpose of prostitution, or for any other immoral purpose

encompassed conduct other than an offense related to “the owning,

controlling, managing or supervising of a prostitution business,” did not

qualify categorically as an aggravated felony, so that the LPR, who was a

native and citizen of the Dominican Republic, was not ineligible for

cancellation of removal on the basis of that conviction.

W. Limitations by date of conviction, etc.

1. In deportation proceedings

a. The aggravated felony ground of deportation was added to the Act by

section 7344(a) of the Anti-Drug Abuse Act of 1988 (ADAA) and was

designated as section 241(a)(4)(B) of the Act. It provided for the

deportability of an alien “convicted of an aggravated felony at any time

after entry.” Section 7344(b) of the ADAA stated that the amendment

“shall apply to any alien who has been convicted, on or after the date of

enactment of this Act [November 18, 1988]of an aggravated felony.” 

Sec 602(a) of the Immigration Act of 1990 amended and redesignated

the deportation grounds then found at section 241 of the Act. Section

602(c) of the 1990 Act provided that its provisions “shall apply to all

aliens described in subsection (a) thereof notwithstanding that (1) any

such alien entered the United States before the date of enactment of this

Act, or (2) the facts, by reason of which an alien is described in such

subsection, occurred before the date of the enactment of this Act.” The

Board held that this provision eliminated the temporal limitation of

section 7344(a) of the ADAA and an alien convicted of an aggravated

felony is subject to deportation regardless of the date of conviction

when the alien is placed in deportation proceedings on or after March 1,
page 327 of 365

1991, and the crime falls within the aggravated felony definition. Matter

of Lettman, 22 I&N Dec. 365 (BIA 1998).

2. In removal proceedings

a. Section 101(a)(43) of the Act provides as follows: "Notwithstanding

any other provision of law (including any effective date), the term

applies regardless of whether the conviction was entered before, on, or

after the date of enactment of this paragraph." This was placed in the

definition by section 321(b) of IIRIRA which was entitled “Effective

date of definition.”

b. Section 321(c) of IIRIRA, entitled“effective date,” provided as follows:

“The amendments made by this section shall apply to actions taken on

or after the date of the enactment of this Act, regardless of when the

conviction occurred.” It also stated that the amendments shall apply

under section 276(b) of the Act only to violations of section 276(a)

occurring on or after such date.

c. Various circuit courts have held that, pursuant to IIRIRA, the

amendments to the aggravated felony definition in section 101(a)(43) of

the Act apply retroactively. See e.g., Sousa v. INS, 226 F.3d 28 (1st

Cir. 2000); Flores-Leon v. INS, 272 F.3d 433 (7th Cir. 2001);

Alvarado-Fonseca v. Holder, 631 F.3d 385 (7th Cir. 2011); AragonAyon v. INS, 206 F.3d 847 (9th Cir. 2000).

XI. Good moral character (“GMC”) - Section 101(f) of the Act

A. Requirement of Good Moral Character

1. A showing of good moral character is required for several forms of relief,

including voluntary departure, suspension of deportation, and registry.

2. A finding of GMC for a given period is not barred merely because of several

arrests during that period which resulted in subsequent release without

conviction. Matter of V-I-, 3 I&N Dec. 571 (BIA 1949).

3. A conviction which forms a basis for a finding that an alien lacks GMC need

not be the basis upon which the alien is found deportable. Matter of CorreaGarces, 20 I&N Dec. 451 (BIA 1992).

B. Persons lacking good moral character as listed in section 101(f)

1. Section 101(f) (as amended by section 822 of the Violence Against Women

and Department of Justice Reauthorization Act of 2005) provides that no

person shall be found to be a person of good moral character who, during the

period for which GMC is required, was:
page 328 of 365

2. A habitual drunkard [INA § 101(f)(1)];

3. Whether inadmissible or not, persons described in the following paragraphs

of section 212(a):

a. Section 212(a)(10)(A) - miscellaneous (including polygamists);

b. Section 212(a)(2)(D) - prostitutes and commercialized vice;

c. Section 212(a)(2)(A) - persons convicted of or admitting a crime

involving moral turpitude and persons convicted of any law or

regulation relating to a controlled substance.

(1) The phrase “whether excludable or not” which appears in the first

part of section 101(f)(3) does not prevent the application of the

“petty offense” exception at current section 212(a)(2)(A)(ii)(II) of

the Act. Matter of M-, 7 I&N Dec. l47 (BIA l956).

(2) Persons convicted of a single offense of simple possession of 30

grams or less of marijuana are not precluded from establishing

good moral character. INA § 101(f)(3).

d. Section 212(a)(2)(B) - persons convicted of two or more offenses;

(1) Other than purely political offenses;

(2) Regardless of whether the conviction was in a single trial or

whether the offenses arose from a single scheme of misconduct;

(3) Regardless of whether the offenses involved moral turpitude;

(4) BUT, the aggregate sentences to confinement actually imposed

must have been 5 years or more.

e. Section 212(a)(2)(C) - an alien who the consular or immigration officer

knows or has reason to believe is or has been an illicit trafficker in

controlled substances or has been a knowing assister, abettor,

conspirator, or colluder with others in the illicit trafficking in controlled

substances.

f. Section 212(a)(6)(E) - alien smugglers.

4. A person whose income is derived principally from illegal gambling

activities [INA § 101(f)(4)];
page 329 of 365

5. A person who has been convicted of 2 or more gambling offenses committed

during the statutory period [INA § 101(f)(5)];

6. A person who has given false testimony for the purpose of obtaining any

benefit under the Act [INA § 101(f)(6)];

a. In order to constitute false testimony under section 101(f)(6) of the Act,

the testimony must be under oath. Matter of G-, 6 I&N Dec. 208 (BIA

l954).

b. False statements in a written application, whether or not under oath, do

not constitute false “testimony.” The word “testimony” refers solely to

oral utterances of witnesses under oath. Matter of L-D-E, 8 I&N Dec.

399 (BIA l959).

c. False information given under oath in a question-and-answer statement

before an INS officer made in connection with a written application is

“testimony.” Matter of Ngan, 10 I&N Dec. 725 (BIA l964); Matter of

G-L-T-, 8 I&N Dec. 403 (BIA l959).

d. In order to come within the prohibition of section 101(f)(6), it is not

necessary that false testimony be given in order to obtain a benefit

under the Act for oneself. False testimony given in connection with a

visa petition filed in another’s behalf will preclude a showing of GMC. 

The benefit sought by the petitioner is to have the beneficiary join him

in the U.S. Matter of Ngan, 10 I&N Dec. 725 (BIA l964); Matter of WJ-W-, 7 I&N Dec. 706 (BIA l958).

e. It is not a requirement of the statute that a benefit be obtained, only that

the false testimony be given for the purpose of obtaining a benefit. 

Matter of L-D-E-, 8 I&N Dec. 399 (BIA l959).

f. If an alien in an immigration proceeding testifies falsely under oath as

to a material fact but voluntarily and without prior exposure of his false

testimony comes forward and corrects his testimony, he has not

committed perjury and an exclusion charge based on the commission of

perjury is not sustained. Matter of R-R-, 3 I&N Dec. 823 (BIA l949). 

Following the reasoning of this case, the Board has held that an alien is

not barred from establishing GMC if he has made a voluntary and

timely retraction of attempted false testimony. Matter of M-, 9 I&N

Dec. 118 (BIA l960). The recantation must be voluntary and made

without delay in order for the false statement and its withdrawal to be

found to constitute one inseparable incident out of which an intention to

deceive cannot rightly be drawn. Matter of Namio, l4 I&N Dec. 4l2

(BIA l973).
page 330 of 365

g. The Ninth Circuit has held that such oral statements must be made “to a

court or tribunal” in order to constitute false testimony. Phinpathya v.

INS, 673 F.2d 1013 (9th Cir. 1981), rev’d on other grounds, 464 U.S.

183 (1984).

h. The Ninth Circuit has not defined what constitutes “a court or tribunal.” 

However, the Ninth Circuit has held that false statements made under

oath during a naturalization examination constitute false testimony

within the meaning of section 101(f)(6) of the Act. Bernal v. INS, 154

F.3d 1020 (9th Cir. 1998).

i. False oral statements under oath to an asylum officer can constitute

false testimony as defined by the Ninth Circuit in Phinpathya v. INS,

673 F.2d 1013 (9th Cir. 1981), rev’d on other grounds, 464 U.S. 183

(1984); Matter of R-S-J-, 22 I&N Dec. 863 (BIA 1999).

j. In a denaturalization case, the Supreme Court has held that there is no

requirement that false testimony under section 101(f)(6) must have been

material (as opposed to visa fraud or misrepresentations under former

section 212(a)(19) [now section 212(a)(6)(C)(i)] which must be

material). Kungys v. United States, 485 U.S. 759 (1988). 

7. A person who, during the period, was confined as a result of conviction to a

penal institution for an aggregate period of 180 days or more, regardless of

whether the offense was committed during the period [INA § 101(f)(7)];

a. Section 101(f)(7) of the Act is concerned with “persons” not “aliens.”

Therefore an individual who falls within the terms of section 101(f)(7)

of the Act is precluded from establishing GMC regardless of whether he

was a citizen or an alien during the period of confinement to the penal

institution. Matter of B-, 7 I&N Dec. 405 (BIA 1957).

b. An alien whose conviction resulted only in a sentence to a period of

probation with no incarceration is not, as a matter of law, precluded

from a showing of GMC by section 101(f)(7). Matter of GantusBobadilla, 13 I&N Dec. 777 (BIA 1971), overruled on other grounds by

Matter of Franklin, 20 I&N Dec. 867 (BIA 1994).

c. Section 101(f)(7) of the Act makes no exception for a prison term

resulting from violation of probation rather than from an original

sentence to incarceration and an alien so confined for an aggregate

period of 180 days or more within the statutory period is barred from

establishing GMC. Matter of Piroglu, 17 I&N Dec. 578 (BIA 1980).

d. Since pre-sentence confinement is credited in determining the date of

release from custody (under section 2900.5 of the California Penal

Code), such pre-sentence confinement is counted in determining
page 331 of 365

whether a respondent has been confined as a result of conviction for an

aggregate period of 180 days. Matter of Valdovinos, 18 I&N Dec. 343

(BIA 1982).

8. A person who has been convicted of an aggravated felony at any time (even

outside the statutory period) [INA § 101(f)(8)];

a. Prior to an amendment to the Act, effective on November 29, 1990,

section 101(f)(8) made a showing of GMC unavailable to anyone

convicted of the crime of murder, even if the conviction took place

outside the statutory period.

b. The amendment to include aggravated felonies applies to convictions

occurring on or after November 29, 1990.

c. Following the amendment, it was doubtful whether persons convicted

of murder before November 29, 1990 were able to demonstrate GMC. 

As part of the Miscellaneous Technical Immigration and Naturalization

Amendments in 1991, Congress again amended section 101(f)(8) to

provide that a person convicted of murder cannot demonstrate GMC

regardless of the date of the conviction.

d. The Board has acknowledged these amendments and holds that an alien

convicted of murder, regardless of the date of the conviction, is forever

precluded from establishing GMC under section 101(f)(8) of the Act. 

Matter of Reyes, 20 I&N Dec. 789 (BIA 1994). An alien convicted of

an aggravated felony other than murder is forever barred from

establishing GMC under section 101 (f)(8) of the Act if the aggravated

felony conviction occurred on or after November 29, 1990. Id.

(1) The Board previously held that a conviction for attempted murder

was not a permanent bar to a showing of GMC and only barred a

showing of GMC under section 101(f)(3) if the offense was

committed within the statutory period for relief. Matter of

Awaijane, 14 I&N Dec. 117 (BIA 1972). The alien's sentence was

commuted to less than 180 days, so section 101(f)(7) was not an

issue.

(2) Since the definition of “aggravated felony” includes the offense of

murder and any attempt to commit an enumerated offense, an

alien convicted of attempted murder after November 29, 1990

should be permanently barred from demonstrating GMC as an

alien convicted of an aggravated felony.

C. Catch-all provision of section 101(f)
page 332 of 365

1. Section 101(f) concludes as follows: “The fact that any person is not within

any of the foregoing classes shall not preclude a finding that for other reasons

such person is not or was not of good moral character.” This catch-all

provision also states that a finding that an alien lacks good moral character

cannot be based on “a false statement or claim of citizenship” if “the alien

reasonably believed at the time of such statement . . . that he or she was a

citizen.” 

2. The Board has ruled that a person “who has made a false claim of United

States citizenship may be considered a person who is not of good moral

character. [INA § 101(f)] does not, however, mandate such an outcome.”

The Board rejected the analysis that, because an unknowing false claim to

U.S. citizenship cannot be grounds to find a lack of good moral character, a

knowing false claim to U.S. citizenship mandates a finding of no good moral

character. Matter of Guadarrama, 24 I&N Dec. 625 (BIA 2008).

XII. Temporary protected status (TPS) - Section 244

A. A grant of TPS waives certain grounds of inadmissibility or deportability 

1. These grounds are waived solely to permit an alien to remain and work

temporarily in the U.S. for the period of time that TPS is effective. Matter of

Sosa Ventura, 25 I&N Dec. 391 (BIA 2010).

2. When an application for TPS that has been denied by the USCIS is renewed

in removal proceedings, the IJ may consider any material and relevant

evidence, regardless of whether the evidence was previously considered in

proceedings before the USCIS. Matter of Figueroa, 25 I&N Dec. 596 (BIA

2011).

B. Designation by the Attorney General

1. The Attorney General may designate any foreign state or any part of such

foreign state under section 244(b) of the Act if:

2. The Attorney General finds that there is an ongoing armed conflict within the

state which would pose a threat to nationals of that state required to return

there [INA § 244(b)(1)(A)];

3. The Attorney General finds that there has been an earthquake, flood, drought,

epidemic, or other environmental disaster in the state resulting in a

substantial, but temporary, disruption of living conditions in the area affected

[INA § 244(b)(1)(B)(i)];

4. The Attorney General finds that the foreign state is temporarily unable to

adequately handle the return of its nationals [INA § 244(b)(1)(B)(ii)];
page 333 of 365

5. The Attorney General finds that the foreign state has officially requested

designation [INA § 244(b)(1)(B)(iii)];

6. The Attorney General finds that there exist extraordinary temporary

conditions in the foreign state that prevent nationals of that state from

returning in safety, unless the Attorney General finds that permitting such

aliens to remain temporarily in the U.S. is contrary to the national interest of

the U.S. [INA § 244(b)(1)(C)].

C. Effective period of designation

1. The designation of a foreign state shall take effect upon the date of

publication of the designation by the Attorney General in the Federal Register

or such later date as the Attorney General may specify. INA § 244(b)(2)(A).

2. The initial period of designation shall be not less than 6 months and not more

than 18 months. INA § 244(b)(2)(B).

3. At least 60 days before the end of the initial period or any extended period of

designation, the Attorney General shall review the conditions in the foreign

state. INA § 244(b)(3)(A).

4. If the Attorney General determines that a foreign state no longer meets the

conditions for designation, he shall terminate the designation by publishing

notice in the Federal Register. The termination shall not be effective earlier

than 60 days after the date the notice is published or the end of the last

extension, whichever is longer. INA § 244(b)(3)(B).

5. If the Attorney General determines that the foreign state continues to meet the

conditions for designation, the period of designation is extended for an

additional period of 6 months (or 18 months in the Attorney General’s

discretion). INA § 244(b)(3)(C).

D. Jurisdiction to consider applications

1. Before the DD. 8 C.F.R. § 1244.7(a) provides that an application for TPS

shall be filed with the DD having jurisdiction over the applicant’s place of

residence.

a. If the application is denied by the DD, the alien has the right to appeal

the denial to the Administrative Appeals Unit (AAU). 8 C.F.R. §

1244.10(c). However, if the basis for the denial of TPS constitutes a

ground for deportability or excludability which renders the alien

ineligible for TPS, the decision shall include a charging document

which sets forth such ground(s). 8 C.F.R. § 1244.10(c)(1). If a charging

document is issued, the alien shall not have the right to appeal the DD’s

decision, but the decision shall apprise the alien of the right to a de
page 334 of 365

novo determination of his or her eligibility before the IJ. 8 C.F.R. §

1244.10(c)(2).

b. The Board held in Matter of Barrientos, 24 I&N Dec. 100 (BIA 2007)

that section 244(b)(5)(B) permits an alien to seek de novo review of

eligibility for TPS in removal proceedings, even if an appeal was

previously filed and denied by the Administrative Appeals Unit. In

Matter of Lopez-Aldana, 25 I&N Dec. 49 (BIA 2009), the Board

clarified the holding in Barrientos and held that an alien may seek de

novo review of eligibility for TPS in removal proceedings even if he

never filed an appeal with the Administrative Appeals Unit.

2. Before an IJ

a. 8 C.F.R. § 1244.7(d) provides that if the alien has a pending case before

an IJ or the Board at the time a state is designated, the alien shall be

given written notice concerning TPS. The alien shall have an

opportunity to submit an application to the DD during the registration

period unless the basis of the charging document, if established, would

render the alien ineligible for TPS. In that case, eligibility for TPS shall

be decided by EOIR during the proceedings.

b. Section 244(b)(5)(B) of the INA permits an alien to assert his right to

TPS in removal proceedings for de novo review of his eligibility, even

if his application has previously been denied by the Administrative

Appeals Unit (AAU) and regardless of whether all appeal rights before

the DHS have been exhausted. Matter of Lopez-Aldana, 25 I&N Dec.

49 (BIA 2009) (clarifying Matter of Barrientos, 24 I&N Dec. 100 (BIA

2007)). 

c. 8 C.F.R. § 1244.11 provides that if a charging document is served on an

alien with a notice of denial or withdrawal of TPS, the alien may renew

the application for TPS in deportation or exclusion proceedings. (The

regulation does not mention removal proceedings, probably due to

oversight.)

d. An IJ may, in the appropriate circumstances, require DHS to provide

the application that the applicant filed with USCIS when the alien is

renewing that application in removal proceedings. Matter of Henriquez

Rivera, 25 I&N Dec. 575 (BIA 2011)

e. 8 C.F.R. § 1244.11 also states that its provisions do not extend the

benefits of TPS beyond the termination of a foreign state’s designation.

f. 8 C.F.R. § 1244.11 also provides that the decision of the IJ as to

eligibility for TPS may be appealed to the Board.
page 335 of 365

g. It is not proper to terminate an alien’s removal proceedings based on a

grant of TPS. Matter of Sosa Ventura, 25 I&N Dec. 391 (BIA 2010).

E. Aliens eligible for TPS 

1. An alien who is a national (or, having no nationality, is a person who last

“habitually resided” in a designated state) of a state designated under section

244(b)(1) is eligible for TPS only if:

a. The alien has been continuously physically present in the U.S. since the

effective date of the most recent designation of that state. INA §

244(c)(1)(A)(i).

(1) Absences are allowed if they are brief, casual, and innocent. INA

§ 244(c)(4)(A).

b. The alien has continuously resided in the U.S. since such date as the

Attorney General may designate. INA § 244(c)(1)(A)(ii).

(1) Absences are allowed if they are brief, casual, and innocent or due

merely to a brief temporary trip abroad required by emergency or

extenuating circumstances outside the control of the alien. INA §

244(c)(4)(B).

c. The alien is admissible as an immigrant. INA § 244(c)(1)(A)(iii).

(1) Section 244(c)(2)(A)(i) provides that the following paragraphs of

section 212(a) shall not apply in determining an alien's

admissibility:

(a) Section 212(a)(5) which makes inadmissible aliens with no

labor certification;

(b) Section 212(a)(7)(A) which makes inadmissible immigrants

not in possession of a valid, unexpired immigrant visa or

other entry document.

(2) Section 244(c)(2)(A)(ii) authorizes the Attorney General to waive

any other provision of section 212(a) [except those listed below] in

individual cases for humanitarian purposes, to assure family unity,

or when it is otherwise in the public interest.

(3) Section 244(c)(2)(A)(iii) provides that the following paragraphs of

section 212(a) May NOT be waived:

(a) 212(a)(2)(A) and 212(a)(2)(B) relating to criminals;
page 336 of 365

(b) 212(a)(2)(C) relating to drug offenses, EXCEPT a single

offense of simple possession of 30 grams or less of marijuana

[section 212(a)(2)(C) actually relates to illicit trafficking in

controlled substances];

(c) 212(a)(3)(A) relating to national security and sabotage, etc.;

(d) 212(a)(3)(B) relating to aliens engaged in terrorist activities;

(e) 212(a)(3)(C) relating to aliens whose entry or proposed

activity in the U.S. may have adverse foreign policy

consequences;

(f) 212(a)(3)(E) relating to those aliens who participated in Nazi

persecution or genocide.

(4) Under section 244(c)(2)(B) of the Act, an alien is also not eligible

for TPS if:

(a) The alien has been convicted of any felony or 2 or more

misdemeanors committed in the U.S., or

(b) The alien is described in section 208(b)(2)(A) which lists the

following:

i) 208(b)(2)(A)(i) - the alien participated in the

persecution of any person on account of race, religion,

nationality, membership in a particular social group, or

political opinion;

ii) 208(b)(2)(A)(ii) - the alien, having been convicted by a

final judgement of a particularly serious crime,

constitutes a danger to the community of the U.S.;

iii) 208(b)(2)(A)(iii) - there are serious reasons for

considering that the alien has committed a serious

nonpolitical crime outside the U.S. prior to arrival in

the U.S.;

iv) 208(b)(2)(A)(iv) - there are reasonable grounds for

regarding the alien as a danger to the security of the

U.S.;

v) 208(b)(2)(A)(v) - the alien is inadmissible under section

212(a)(3)(B)(i)(I) [has engaged in a terrorist activity],

section 212(a)(3)(B)(i)(II) [Attorney General knows or

has reason to believe alien is engaged in or likely to
page 337 of 365

engage in terrorist activity], section 212(a)(3)(B)(i)(III)

[has, under circumstances indicating an intention to

cause death or serious bodily harm, incited terrorist

activity], or section 212(a)(3)(B)(i)(IV) [is a

representative of a foreign terrorist organization] unless,

in the case only of a representative, the Attorney

General determines, as a matter of discretion, that there

are not reasonable grounds for regarding the alien as a

danger to the security of the U.S.; see Abufayad v.

Holder, 632 F.3d 623 (9th Cir. 2011) (agreeing with a

Board decision finding the alien to be “likely to engage

after entry in any terrorist activity” and denying the

alien CAT protection). 

vi) 208(b)(2)(A)(vi) - the alien was firmly resettled in

another country prior to arriving in the U.S.

d. To the extent and in a manner which the Attorney General establishes,

the alien registers for TPS during a registration period of not less than

180 days.

(1) To be eligible for late initial registration for TPS, an applicant

filing as the “child of an alien currently eligible to be a TPS

registrant” must establish only that he or she qualified as a “child”

at the time of the initial registration period.” Matter of N-C-M-, 25

I&N Dec. 535 (BIA 2011).

(2) A late initial registrant for TPS must independently meet all initial

registration requirements of TPS. Matter of Echeverria, 25 I&N

Dec. 512 (BIA 2011).

F. Withdrawal of TPS - Section 244(c)(3) of the Act

1. The Attorney General shall withdraw TPS granted to an alien if:

a. The Attorney General finds that the alien was not in fact eligible for

TPS; or

b. Except for brief, casual, and innocent absences or absences with the

prior consent of the Attorney General under section 244(f)(3), the alien

has not remained continuously physically present in the U.S. from the

date he was first granted TPS; or

c. The alien fails, without good cause, to register with the Attorney General

annually at the end of each 12 month period after the granting of TPS.
page 338 of 365

2. 8 C.F.R. § 1244.18 provides that a charging document may be issued against

an alien granted TPS on grounds of deportability or excludability which would

have rendered the alien statutorily ineligible for TPS under 8 C.F.R. §§

1244.3(c) and 1244.4, unless the Service had expressly granted a waiver of

those grounds. The charging document shall constitute notice to the alien that

his or her status in the U.S. is subject to withdrawal and a final order of

deportation or exclusion shall constitute a withdrawal of TPS status.

3. Section 244(c)(5) of the Act provides that the existence of the statute

authorizing TPS does not authorize an alien to apply for admission to, or to be

admitted to, the U.S. in order to apply for TPS.

G. TPS and cancellation of removal under section 240A(a)

1. Section 244(e) of the Act makes the following provisions:

2. The period of TPS shall not be counted as physical presence in the U.S. for

purposes of cancellation of removal under section 240A(a) of the Act unless

the Attorney General determines that extreme hardship exists.

a. The reference to section 240A(a) appears to be an error since that section

requires continuous residence and LPR status, not continuous physical

presence. Congress must have meant to refer to cancellation of removal

and adjustment of status under section 240A(b).

3. The period of TPS shall not cause a break in the continuity of residence for

purposes of suspension of deportation under section 244(a) of the Act. The

period of time before TPS may be added to the period of time after TPS to

determine the period of physical presence.

H. Benefits and status during TPS - Section 244(f) of the Act.

1. During TPS, the alien shall not be considered to be permanently residing in

the U.S. under color of law. INA § 244(f)(1).

2. During TPS, the alien may be deemed ineligible for public assistance by a

State. INA § 244(f)(2).

3. During TPS, the alien may travel abroad with the prior consent of the Attorney

General. INA § 244(f)(3).

4. For purposes of adjustment of status under section 245 of the Act or change of

status under section 248 of the Act, an alien in TPS shall be considered as

being in, and maintaining, lawful status as a nonimmigrant. INA § 244(f)(4).

I. Countries that have been designated for TPS 
page 339 of 365

1. Available at www.uscis.gov/tps

2. Currently Designated Countries.

a. El Salvador was designated from March 9, 2001, until September 9,

2002. On July 11, 2002, it was extended until September 9, 2003. It

was extended again through September 9, 2006. Effective September 9,

2006, it was extended to September 9, 2007. Effective September 10,

2007, TPS status was again extended to March 9, 2009, and then until

September 9, 2010. El Salvador is currently designated through March

9, 2012.

b. On January 5, 1999, the Attorney General designated Honduras for TPS

for a period of 18 months. Under the terms of the designation, applicants

could apply for TPS during the registration period lasting from January

5, 1999, through July 5, 1999. In Attorney General order No. 2239-99

the registration period was extended until August 20, 1999. The

Attorney General’s order specified that it did not extend the period of

designation. The next extension was November 3, 2004 when it was

extended to July 5, 2006. On May 29, 2007 DHS announced that TPS

status for Honduras would be further extended to January 5, 2009. 

Honduras is currently designated through January 5, 2012.

c. An extension for TPS for Haiti beneficiaries became effective on July

23, 2011, for an additional 18 months through January 22, 2013. The

USCIS TPS Bulletin for Haiti should be consulted to determine

registration and re-registration deadlines.

d. On January 5, 1999, the Attorney General designated Nicaragua for

TPS for a period of 18 months. Under the terms of the designation,

applicants could apply for TPS during the registration period lasting

from January 5, 1999, through July 5, 1999. In Attorney General order

No. 2239-99 the registration period was extended until August 20, 1999. 

The Attorney General’s order specified that it did not extend the period

of designation. On May 29, 2007, DHS announced that TPS status for

Nicaragua would be further extended to January 5, 2009. Nicaragua is

currently designated through January 5, 2012.

e. TPS was granted to nationals of Somalia on September 16, 1991. It was

to expire on September 17, 1992 but was extended to September 17,

1993. On September 20, 1993, it was extended to September 17, 1994. 

Eligibility for an extension of TPS is limited to those Somalis who

already obtained TPS. A new form I-821 was required to be filed before

October 12, 1993. TPS was extended several times. On July 29, 2005,

it was extended to September 17, 2006. Effective September 17, 2006, it

was extended to March 17, 2008 through September 17, 2006. Somalia

is currently designated through September 17, 2012
page 340 of 365

f. Sudan was designated from November 4, 1997 to November 3, 1998. It

was extended to November 3, 1999. It was again extended and

redesignated to November 2, 2000. The next extension was on March 8,

2007, when TPS status was extended to November 2, 2008, and then

until May 2, 2010. Sudan’s designation was extended again in October

2011 through May 2, 2013.

g. The newly-independent South Sudan was designated for TPS from

November 3, 2011 through May 2, 2013.

3. Countries for which TPS designation has expired

a. Burundi was designated from November 4, 1997 to November 3, 1998. 

It was extended to November 3, 1999. It was again extended to

November 2, 2000. The notice also redesignates Burundi under the TPS

program, thereby expanding TPS eligibility to include nationals of

Burundi (and aliens having no nationality who last habitually resided in

Burundi) who have been “continuously present in the United States” and

who have “continuously resided in the United States” since November 9,

1999. It has been extended additional times. On October 29, 2007,

DHS determined that TPS status for Burundi would terminate effective

May 2, 2009. 

b. Angola was designated from March 29, 2000, until March 29, 2001. It

was extended again. The last designation was on February 1, 2002,

which extended it to March 29, 2003. It expired on March 29, 2003.

c. TPS was granted to nationals of (and aliens having no nationality who

last habitually resided in) Bosnia-Herzegovina who have been

continuously physically present and have continuously resided in the

U.S. since August 10, 1992. The registration period began on August

10, 1992, and ended on August 10, 1993. TPS was due to expire on

August 10, 1993, but on July 29, 1993, it was extended to August 10,

1994. Those previously granted TPS were required to re-register by

filing a new application between July 29, 1993, and August 30, 1993. It

was extended several times, but terminated on February 10, 2001.

d. Guinea-Bissau was designated from March 11, 1999, until March 10,

2000. The Attorney General later determined that conditions in GuineaBissau no longer support a TPS designation. However, because this

determination was not made 60 days before the termination date, TPS

was automatically extended by statute to September 10, 2000. It expired

on that date.

e. The province of Kosovo in the Republic of Serbia in the state of the

Federal Republic of Yugoslavia (Serbia-Montenegro) was designated
page 341 of 365

from June 9, 1998, until June 8, 1999. It was extended and also

redesignated a few times, but expired on December 8, 2000.

f. TPS was granted to nationals of Kuwait on March 27, 1991. The period

of TPS expired on March 27, 1992.

g. TPS was granted to nationals of Lebanon on March 27, 1991. It was to

expire on March 27, 1992, but was extended to March 28, 1993. Nonnational habitual residents were granted from March 28, 1992, to

September 28, 1992, to apply for TPS. TPS for Lebanon was terminated

on April 9, 1993.

h. Montserrat was designated in 1998. It was extended until August 27,

2000. Eligible nationals of Montserrat (or aliens having no nationality

who last habitually resided in Montserrat) could re-register for TPS and

an extension of employment authorization. Re-registration was limited

to persons who registered for the initial period of TPS, which ended on

August 27, 1998, or who registered after that date under the late initial

registration provision. Persons who are eligible for late initial

registration may register for TPS during this extension. It was extended

several times, the last was on July 6, 2004, when it was extended to

February 27, 2005. It expired on that date.

i. TPS was granted to nationals of (and aliens having no nationality who

last habitually resided in) Rwanda. The registration period began on

June 7, 1994 and was to expire on June 6, 1995. On November 14,

1996, TPS was extended until June 6, 1997. TPS for Rwanda terminated

on December 6, 1997.

j. Sierra Leone was designated from November 4, 1997 to November 3,

1998. It was extended several times. It terminated on May 3, 2004.

4. Deferred Enforced Departure

a. TPS was granted to nationals of Liberia on March 27, 1991. It expired

in 1999, but the President directed the Attorney General to defer

enforced departure. The most recent such order is valid through March

31, 2013, for Liberians (and aliens without nationality who last

habitually resided in Liberia) who had TPS as of September 30, 2007. 

XIII. Motions to reopen, reconsider, and remand under the IIRIRA

A. Motion to reopen

1. A motion to reopen (MTR) seeks to reopen proceedings so that new evidence

can be presented and a new decision entered on a different factual record,
page 342 of 365

normally after a further evidentiary hearing. Matter of Cerna, 20 I&N Dec.

399 (BIA 1991). 

a. In Matter of M-S-, 22 I&N Dec. 349 (BIA 1998), the Board

distinguished between motions to reopen in order to rescind an order of

deportation following an in absentia hearing and motions to reopen in

order to apply for a form of relief that was unavailable at the time of the

hearing. In that decision, the Board stated:

(1) Rescission means to annul ab initio. Thus, by the plain meaning of

the words in section 242B(c)(3) of the Act [now section

240(b)(5)(C)], to “rescind” an in absentia deportation order is to

annul from the beginning all of the determinations reached in the in

absentia hearing. The only reasons that will support such

rescission are exceptional circumstances which prevented the alien

from appearing, the alien’s incarceration which prevented his or

her appearance, or lack of notice of the hearing. Once an in

absentia order is rescinded, the alien is then given a new

opportunity to litigate the issues previously resolved against him or

her at the in absentia hearing. In other words, the deportation

proceedings go back to the start, the Service must proceed to prove

deportability under the allegations in the original Order to Show

Cause, and the alien must establish any eligibility for relief. Matter

of Grijalva, 21 I&N Dec. 472 (BIA 1996). The alien is returned to

the same status he or she had prior to the in absentia hearing,

namely, an alien charged with deportability and subject to the

already-initiated deportation proceedings.

(2) In contrast, proceedings may be “reopened” when a new question

has arisen that requires a hearing. 8 C.F.R. §§ 1003.2(c),

1003.23(b)(3); Matter of Ku, 15 I&N Dec. 712 (BIA 1976). An

order reopening proceedings is an interlocutory order allowing for

such a hearing and does not dispose of the merits of the application

for relief from deportation. Matter of Pena-Diaz, 20 I&N Dec. 841

(BIA 1994); Matter of Ku, 15 I&N Dec. 712 (BIA 1976). If, after

reopening, the requested relief is denied, the respondent remains

subject to the original finding of deportability and the respondent is

ordered deported from the United States. When proceedings are

reopened for a purpose other than rescission of an in absentia

order, what transpired at previously conducted proceedings is not

necessarily abrogated.

2. A motion to reconsider is a request that the original decision be reexamined in

light of additional legal arguments, a change of law, or an argument or aspect

of the case that was overlooked. Matter of Cerna, 20 I&N Dec. 399 (BIA

1991). 
page 343 of 365

3. A motion to remand is a request to the Board to return an active Record of

Proceeding (“ROP”) to the IJ for receipt of additional evidence. It is

distinguished from a MTR because a motion to remand is made to the Board

while it is still considering an appeal from an IJ’s decision rather than after the

Board has made its decision. Since the Board's function is to review a record

rather than create a record, it cannot receive evidence and, if the motion is

granted, it must return the ROP to the IJ for receipt of the evidence at a

hearing.

a. The term “motion to remand” is also used at the trial level to describe a

request to an IJ to remand a case to the jurisdiction of the District

Director (DD) so that the DD can consider a remedy over which he has

exclusive jurisdiction, such as reinstatement of student status, or

concurrent jurisdiction with the IJ, such as adjustment of status.

B. Motion to reconsider

1. The alien may file one motion to reconsider a decision that the alien is

removable from the U.S. INA § 240(c)(5)(A). The motion must be filed

within 30 days of the date of entry of a final administrative order of removal. 

INA § 240(c)(5)(B). The motion shall specify the errors of law or fact in the

previous order and shall be supported by pertinent authority. INA §

240(c)(5)(C).

2. Under 8 C.F.R. § 1003.2(b), “[a] motion to reopen or a motion to reconsider

shall not be made by or on behalf of a person who is the subject of exclusion,

deportation, or removal proceedings subsequent to his or her departure from

the United States. Any departure from the United States, including the

deportation or removal of a person who is the subject of exclusion,

deportation, or removal proceedings, occurring after the filing of a motion to

reopen or a motion to reconsider, shall constitute a withdrawal of such

motion.”

3. A motion to reconsider which is based on a legal argument that could have

been raised earlier in the proceedings will not be granted. Matter of Medrano,

20 I&N Dec. 216 (BIA 1990). This case involved a motion to reconsider

made by INS to the Board. Before the initial decision, the Board specifically

solicited the views of the INS on a particular issue. The INS stated a position

that the IJ’s decision was correct. After the Board rendered its decision, the

INS sought reconsideration and argued that the IJ’s decision was incorrect. 

The Board denied the motion because the INS did not provide an adequate

explanation for its failure to raise its arguments at the earlier stage of the

proceedings.

C. Motions to reopen in general
page 344 of 365

1. An alien may file one motion to reopen proceedings under section 240. INA §

240(c)(6)(A). The motion to reopen shall state the new facts that will be

proven if the motion is granted, and shall be supported by affidavits or other

evidentiary material. INA § 240(c)(6)(B).

2. Under 8 C.F.R. § 1003.2(d), “[a] motion to reopen or a motion to reconsider

shall not be made by or on behalf of a person who is the subject of exclusion,

deportation, or removal proceedings subsequent to his or her departure from

the United States. Any departure from the United States, including the

deportation or removal of a person who is the subject of exclusion,

deportation, or removal proceedings, occurring after the filing of a motion to

reopen or a motion to reconsider, shall constitute a withdrawal of such

motion.” 

a. In Matter of Armendarez-Mendez, 24 I&N Dec. 646 (BIA 2008), the

Board ruled that, under 8 C.F.R. § 1003.2(d), the Board does not have

the authority to reopen proceedings, either by motion or sua sponte, after

the alien has left the U.S. The Board disagreed with Lin v. Gonzales,

473 F.3d 979 (9th Cir. 2007), and Reynoso-Cisneros v. Gonzales, 491

F.3d 1001 (9th Cir. 2007), in which the Ninth Circuit, citing the

regulation’s present-tense phrasing (“is the subject of . . . removal

proceedings”), ruled that 8 C.F.R. § 1003.2(d) does not bar aliens from

filing motions to reopen from outside the U.S. after the proceedings are

complete. The Board stated that, under Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), it would not

follow Lin or Reynoso-Cisneros, including within the Ninth Circuit. In

addition, the Board disagreed with William v. Gonzales, 499 F.3d 329

(4th Cir. 2007), in which the Fourth Circuit invalidated 8 C.F.R.

§ 1003.2(d) due to what it viewed as an inconsistency between the

regulation and the INA. The Board stated it would follow William in the

Fourth Circuit, but not in the other circuits.

b. In William v. Gonzales, 499 F.3d 329 (4th Cir. 2007), the Fourth Circuit

invalidated 8 C.F.R. § 1003.2(d) as it pertains to motions to reopen,

ruling that motions to reopen may be filed from outside, as well as

inside, the U.S. The court reasoned that 8 C.F.R. § 1003.2(d) conflicts

with section 240(c)(7)(A), which states that “[a]n alien may file one

motion to reopen proceedings,” as the statute does not specify any

restriction on motions to reopen filed outside the U.S.

(1) In Sadhvani v. Holder, 596 F.3d 180 (4th Cir. 2009), the Fourth

Circuit upheld the Board’s denial of a motion to reopen for asylum

(based on changed country conditions) because the petitioner was

no longer present in the United States. The court found that

although the Board had jurisdiction to entertain the petitioner’s

motion under William v. Gonzales, 499 F.3d 329 (4th Cir. 2007),

the Board properly denied relief based on the statutory requirement
page 345 of 365

that one must be present in the United States to be eligible for

asylum. 

c. In Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) the Sixth Circuit held

that the Board does not lack jurisdiction to consider an alien’s motion to

reopen removal proceedings even though the alien was no longer in the

United States. The Sixth Circuit found that, first, no statutory provision

gives the Board authority to decline the exercise of jurisdiction that is

given to it by section 240(c)(7)(A) and, second, recent Supreme Court

decisions make clear that the departure bar is a mandatory rule and not a

jurisdictional requirement. Id. at 3-5. The Sixth Circuit also pointed to

Matter of Bulnes-Nolasco, 25 I&N Dec. 57 (BIA 2009) (holding that

Board maintains jurisdiction over motion to reopen where alien who left

United States claimed not to have received notice of the warrant of

removal), as proof that the departure bar does not deprive the Board of

jurisdiction to handle all matters relating to aliens who have departed the

United States. Id. at 5. See also Luna v. Holder, 637 F.3d 85 (2d Cir.

2011) (citing Pruidze for the proposition that the Board must consider an

alien’s motion to reopen even if the alien is no longer in the United

States); Coyt v. Holder, 593 F.3d 902, 907 (9th Cir. 2010) (holding 8

C.F.R. § 1003.2(d) to be “inapplicable” where the petitioner is forcibly

removed).

d. In Marin-Rodriguez v. Holder, 612 F.3d 591 (7th Cir. 2010) , the

Seventh Circuit disagreed with Matter of Armendarez-Mendez, and held

that 8 C.F.R. § 1003.2(d) is untenable as a rule about subject matter

jurisdiction. The court held that the Act does not support the conclusion

that the Board lacks jurisdiction “to issue decisions that affect the legal

rights of departed aliens.” Id. at 595. The Seventh Circuit declined to

follow the approach taken by the Ninth and Sixth Circuits, wherein those

circuits distinguish between motions considered after involuntary

departures and those after voluntary departures, and also disagreed with

the Fourth Circuit’s decision in William v. Gonzales, 499 F.3d 329 (4th

Cir. 2007). The Court further noted that Matter of Bulnes-Nolasco, 25 I.

& N. Dec. 57 (BIA 2009), “ suggests that the Board may be in the

process of abandoning its ‘jurisdictional’ characterization of the

departure rule.” Id.

e. In Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011), the Ninth

Circuit held that the physical removal of an alien seven days after a final

order of removal had been entered did not preclude him from pursuing

motion to reopen because the Attorney General did not have power

under regulatory “departure bar” to unilaterally reduce time in which the

alien could have filed his motion to reopen from statutorily mandated 90

days to seven days. The court reopened the case for the Board to decide

whether the alien’s 2007 conviction, which had been vacated, was

vacated for reasons related to the alien’s immigration status.
page 346 of 365

f. In Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir. 2011), the Third

Circuit held that the Board does not lack jurisdiction over motions to

reconsider where the alien has been removed from the United States.

The court held that the post-departure bar at 8 C.F.R. § 1003.2(d) is

invalid because it is inconsistent with congressional intent in enacting

IIRIRA. Id. at 223. The court specifically cited six reasons for its

holding: (1) the plain text of the statute provides each alien with the right

to file one motion to reopen and one motion to reconsider; (2) the

Supreme Court has emphasized the importance of the statutory right to

file a motion to reopen; (3) Congress specifically considered and

included other limitations on the right, but did not include the

geographic limitation; (4) the post-departure bar would eviscerate the

right to reopen or reconsider by allowing the government to remove the

alien before the filing deadline; (5) Congress included a geographic

limitation on the availability of a domestic violence exception to the

filing deadline, but did not include the limitation generally; and (6)

Congress specifically withdrew the statutory post-departure bar to

judicial review, indicating a focus on improving accuracy of decisions.

Id.

g. Other circuits have considered whether the “post-departure bar” on

motions to reopen in 8 C.F.R. § 1003.2(d) and motions to reconsider in 8

C.F.R. § 1003.23(b)(1) can be applied without conflicting with statute. 

The Tenth Circuit upheld both regulations, agreeing with the dissent in

the Fourth Circuit’s William v. Gonzales decision. Rosillo-Puga v.

Holder, 580 F.3d 1147 (10th Cir. 2009); see also Mendiola v. Holder,

585 F.3d 1303 (10th Cir.2009). The Fifth Circuit upheld 8 C.F.R. §

1003.2(d) on narrower grounds. Ovalles v. Holder, 577 F.3d 288, 295-96

(5th Cir. 2009) (distinguishing facts from William v. Gonzales, 499

F.3d 329 (4th Cir. 2007)).

3. Time in which to file. Except for a MTR to rescind an order of removal

rendered in absentia or to apply for asylum and withholding of deportation, the

MTR shall be filed within 90 days of the date of entry of a final administrative

order of removal. INA § 240(c)(6)(C)(i). The filing of a motion to reopen an

in absentia order entered pursuant to section 240(b)(5) is subject to the

deadline specified in section 240(b)(5)(C). INA § 240(c)(6)(C)(iii).

a. A judicial ruling cannot be considered the final administrative decision,

and the filing of a court action seeking judicialreview does not extend

the time for filing a motion to reopen administrative proceedings. 

Matter of Susma, 22 I&N Dec. 947 (BIA 1999). A motion to reopen a

decision of the Board following judicial review is untimely if it is filed

more than 90 days after the date of the Board’s decision, even if the

motion is filed within 90 days of the order of the court. Id.
page 347 of 365

b. Where an alien has filed an untimely motion to reopen alleging that the

INS failed to prove the alien’s removability, the burden of proof no

longer lies with the Service to establish removability, but shifts to the

alien to demonstrate that an exceptional situation exists that warrants

reopening by the Board on its own motion. Matter of Beckford, 22 I&N

Dec. 1216 (BIA 2000). Where an alien seeking to reopen removal

proceedings failed to demonstrate a substantial likelihood that the result

in his case would be changed if the proceedings were reopened, by

showing that he was not, in fact, removable, he failed to present an

exceptional situation to warrant a grant of his untimely motion. Id.

c. The Board held that 90-day time limitation for filing a motion to reopen

in 8 C.F.R. § 1003.23(b)(1) applies to motions to reopen in absentia

deportation orders for the purpose of adjusting status, whether filed

before or after the 1996 promulgation of the regulations, where such

motions do not meet any of the exceptions to the time limitations for

motions to reopen. Matter of Monges-Garcia, 25 I&N Dec. 246 (BIA

2010). The Board further held that the 5-year limitation on discretionary

relief for failure to appear at deportation proceedings under former

section 242B(e)(1) of the Act is not in conflict with, and does not

provide an exception to, the 90-day deadline for filing a motion to

reopen in 8 C.F.R. § 1003.23(b)(1). Id. 

D. Motion to reopen to apply for asylum or withholding of removal

1. There is no time limit on the filing of a MTR if the basis of the motion is to

apply for relief under sections 208 or 241(b)(3) and is based on changed

country conditions arising in the country of nationality or the country to which

removal has been ordered, if such evidence is material and was not available

and would not have been discovered or presented at the previous proceeding. 

INA § 240(c)(7)(C)(ii).

2. The Board held that section 240(c)(7)(C)(ii) (and 8 C.F.R. § 1003.2(c)(3)(ii)),

bars an alien who is subject to a final order of removal from filing an untimely

motion to reopen removal proceedings to apply for asylum under section

208(a)(2)(D), if the motion is based on changed personal circumstances (as

opposed to changed country conditions). Matter of C-W-L-, 24 I&N Dec. 346

(BIA 2007). 

3. In Joseph v. Holder, 579 F.3d 827 (7th Cir. 2009), the Seventh Circuit held

that the Board erred in interpreting 8 C.F.R. § 1003.2(c)(3)(ii) when it

required the alien to demonstrate a “dramatic change in country conditions”

even though no such inference can be drawn from the regulation or case law. 

The court underscored that merely a material change is required, and also

asserted that the language of the regulation does not restrict the “changed
page 348 of 365

circumstance” to only a broad social or political change, but that it could

encompass a personal or local change as well.

4. “[A]n applicant cannot claim changed country conditions based on her own

actions in the United States when the conditions in the country of origin have

not materially changed.” Lin Xing Jiang v. Holder, 639 F.3d 751 (7th Cir.

2011) (affirming denial of motion to reopen where alien from China with two

United States citizen children offered no evidence that the population control

efforts and one-child policy in China had materially changed since the date of

her initial hearing). 

E. Motion to reopen to rescind a removal order rendered in absentia

1. An in absentia order of removal may be rescinded only

a. upon a MTR filed within 180 days after the date of the order of removal

if the alien demonstrates that the failure to appear was because of

exceptional circumstances [INA § 240(b)(5)(C)(i)];

(1) The term “exceptional circumstances” is defined at section

240(e)(1) and refers to exceptional circumstances (such as serious

illness or death of the spouse, child or parent of the alien, but not

including less compelling circumstances) beyond the control of the

alien.

(2) Cases discussing “exceptional circumstances”

(a) An alien (in deportation proceedings) failed to establish that a

serious headache he suffered on the day of his hearing

amounted to exceptional circumstances to excuse his failure

to appear where he gave no explanation for neglecting to

contact the Immigration Court on the day of the hearing and

did not support his claim with medical records or other

evidence, such as affidavits by persons with knowledge

regarding the extent and seriousness of the alien’s headache

and the remedies he used to treat it. Matter of J-P-, 22 I&N

Dec. 33 (BIA 1998).

(b) An alien (in deportation proceedings) who claimed that his

failure to appear at his hearing resulted from an “illegible

hearing date” on the OSC and notice of hearing failed to

establish by sufficient evidence that he received inadequate

notice under former section 242B(c)(3)(B) of the Act or that

his absence was the result of exceptional circumstances under

former section 242B(c)(3)(A) of the Act. Matter of S-M-, 22

I&N Dec. 49 (BIA 1998).
page 349 of 365

(c) An alien (in deportation proceedings) failed to establish that a

foot injury he suffered on the day before his hearing

amounted to exceptional circumstances to excuse his failure

to appear where he gave no explanation for neglecting to

contact the Immigration Court on the day of the hearing and

did not support his claim with medical records or other

evidence, such as an affidavit from his employer. Matter of

B-A-S-, 22 I&N Dec. 57 (BIA 1998).

i) An alien seeking to reopen in absentia proceedings

based on her unsuccessful communications with her

attorney did not establish exceptional circumstances

under former section 242B(c)(3)(A) of the Act where

she failed to satisfy all the requirements for an

ineffective assistance of counsel claim set out in Matter

of Lozada, 19 I&N Dec. 637 (BIA 1988). A claim of

ineffective assistance of counsel does not constitute an

exception to the 180 day statutory limit for the filing of

a MTR to rescind an in absentia order of deportation

under former section 242B(c)(3)(A) of the Act. Matter

of A-A-, 22 I&N Dec. 140 (BIA 1998); Matter of Lei,

22 I&N Dec. 113 (BIA 1998).

b. or upon a MTR filed at any time if the alien demonstrates that the alien

did not receive notice in accordance with section 239(a)(1) or (2) or the

alien demonstrates that the alien was in Federal or State custody and the

failure to appear was through no fault of the alien [INA §

240(b)(5)(C)(ii)].

(1) A hearing notice which is sent by certified mail to the alien’s last

known address is sufficient to establish clear, unequivocal, and

convincing evidence that the alien received “written notice” of the

deportation hearing. Matter of Grijalva, 21 I&N Dec. 27 (BIA

1995), superseded by statute as stated in Patel v. Holder, 652 F.3d

962 (8th Cir. 2011). To overcome this presumption and establish

nonreceipt an alien “must present substantial and probative

evidence such as documentary evidence from the Postal Service,

third party affidavits, or other similar evidence demonstrating that

there was improper delivery or that nondelivery was not due to the

[alien’s] failure to provide an address where he [or she] could

receive mail. Id. at 37. See Sanchez v. Holder, 627 F.3d 226, 233

(6th Cir. 2010) (deferring to the Board’s interpretation).

(2) An alien who is in Federal or State custody is necessarily unable to

appear through no fault of his own. Matter of Evra, 25 I&N Dec.

79 (BIA 2009). The conduct underlying an alien’s arrest and
page 350 of 365

incarceration does not constitute “fault” within the meaning of

section 240(b)(5)(C)(ii). Id. at 81.

2. The filing of the MTR to rescind an in absentia order of removal shall stay the

removal of the alien pending disposition of the motion by the IJ. INA §

240(b)(5)(C). The Board has held that the automatic stay of deportation

associated with the filing of a MTR after an in absentia hearing under former

section 242B(C)(3) continued during the pendency of an appeal from the

denial of the MTR. Matter of Rivera, 21 I&N Dec. 232 (BIA 1996). Section

240(b)(5)(C) appears subject to the same interpretation.

F. Motions to reopen orders that were entered in absentia in deportation proceedings

1. An in absentia deportation order may be rescinded only 

a. upon an MTR filed within 180 days after the date of the order of

deportation if the alien demonstrates that the failure to appear was

because of exceptional circumstances beyond the control of the alien; or

[8 C.F.R. § 1003.23(b)(4)(iii)(A)(1)].

b. upon an MTR filed at any time if the alien demonstrates that he or she

did not receive notice or if the alien demonstrates that he or she was in

federal or state custody and the failure to appear was through no fault of

the alien. [8 C.F.R. § 1003.23(b)(4)(iii)(A)(2)]

(1) A hearing notice which is sent by certified mail to the alien’s last

known address is sufficient to establish clear, unequivocal, and

convincing evidence that the alien received “written notice” of the

deportation hearing. Matter of Grijalva, 21 I&N Dec. 27 (BIA

1995). To overcome this presumption and establish nonreceipt an

alien “must present substantial and probative evidence such as

documentary evidence from the Postal Service, third party

affidavits, or other similar evidence demonstrating that there was

improper delivery or that nondelivery was not due to the [alien’s]

failure to provide an address where he [or she] could receive mail.

Id. at 37. See Sanchez v. Holder, 627 F.3d 226, 233 (6th Cir. 2010)

(deferring to the Board’s interpretation).

G. Motions to reopen orders that were entered in absentia in exclusion proceedings.

1. The regulation that provides exceptions to filing deadlines for motions seeking

to reopen orders that were entered in absentia in deportation or exclusion

proceedings is found at 8 C.F.R. § 1003.23(b)(4)(iii). Although the

subheading at 8 C.F.R. § 1003.23(b)(4)(iii) signals that this regulation

provides a time exception for motions to reopen both deportation and

exclusion proceedings conducted in absentia, the regulation itself provides a

time exception only for motions to reopen deportation proceedings conducted
page 351 of 365

in absentia. The regulation is silent as to what specific time exception applies

to motions to reopen exclusion proceedings conducted in absentia. The

regulation provides only a standard for reopening, stating that “[a] motion to

reopen exclusion hearings on the basis that the Immigration Judge improperly

entered an order of exclusion in absentia must be supported by evidence that

the alien had reasonable cause for his failure to appear.” 8 C.F.R. §

1003.23(b)(4)(iii)(B). Therefore, the Board held that he regulatory language at

8 C.F.R. § 1003.23(b)(4)(iii)(B) contains no time or numerical limitations on

aliens who wish to file a motion to reopen exclusion proceedings conducted in

absentia. Matter of N-B-, 22 I&N Dec. 590 (BIA 1999). In that decision, the

Board pointed out in a footnote: “We emphasize that our decision in the

instant case “fills in” the regulatory “gap” that exists in the current regulation. 

Nothing prevents the Department of Justice from revising the current

regulation to fill the regulatory gap in a manner that would create specific

restrictions on motions to reopen exclusion proceedings conducted in

absentia.”

H. A motion to reopen or reconsider based upon a claim of ineffective assistance of

counsel

1. A motion to reopen or reconsider based upon a claim of ineffective assistance

of counsel should comply with the following criteria:

a. The motion should be supported by an affidavit of the allegedly

aggrieved respondent setting forth in detail the agreement that was

entered into with counsel with respect to the actions to be taken and

what representations counsel did or did not make to the respondent in

this regard;

b. Counsel whose integrity or competence is being impugned should be

informed of the allegations leveled against him and be given an

opportunity to respond;

c. The motion should reflect whether a complaint has been filed with

appropriate disciplinary authorities with respect to any violation of

counsel's ethical or legal responsibilities, and if not, why not. Matter of

Lozada, 19 I&N Dec. 637 (BIA 1988).

(1) The Ninth Circuit has held that the Lozada requirements need not

be rigidly enforced where their purpose is fully served by other

means. Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000). 

2. Equitable tolling for motions based on ineffective assistance of counsel.

a. Equitable tolling. Some of the circuits permit the filing deadlines or

numerical limitations for motions to reopen to be tolled upon a showing
page 352 of 365

of ineffective assistance of counsel. Often, a showing of “due diligence”

by the alien is required.

(1) First Circuit: Whether time limits may be tolled remains an open

question under Chen v. Gonzales, 415 F.3d 151 (1st Cir. 2005). 

See also Guerrero-Santana v. Gonzales, 499 F.3d 90 (1st Cir.

2007); Boakai v. Gonzales, 447 F.3d 1, 3 (1st Cir. 2006); Jobe v.

INS, 238 F.3d 96, 100 (1st Cir. 2001) (en banc). However, the

court has held that tolling is unavailable where a party fails to

exercise due diligence. In Nascimento v. Mukasey, 549 F.3d 12

(1st Cir. 2008), the court found no due diligence where the alien

was ordered deported on October 11, 2001, but waited until

November 20, 2002, to file a motion to reopen with the IJ. The IJ

denied the motion and, in February 2004, the Board of Immigration

Appeals affirmed. The petitioner waited until March 2007 to file

the subsequent motion to reopen that was the subject of the court’s

decision.

(2) Second Circuit: Time limits may be tolled. Iavorski v. INS, 232

F.3d 124, 129-133 (2d Cir. 2000). In Iavorski, the court cited lack

of due diligence by the alien in affirming the denial of the motion

to reopen. In Cekic v. INS, 435 F.3d 167 (2d Cir. 2006), the

Second Circuit again affirmed the denial of the motion to reopen

for lack of due diligence. In Cekic, the alien petitioners should

have become aware in 2000 that their counsel provided ineffective

assistance. However, they waited until 2002 to file a motion to

reopen. In Wang v. BIA, 508 F.3d 710 (2d Cir. 2007), the Second

Circuit articulated a two-step inquiry for equitably tolling deadlines

for motions to reopen for ineffective assistance of counsel. First,

the court evaluates when the ineffective assistance should have

been discovered by a reasonable person. Second, the court asks

whether the alien showed due diligence in the period between

discovering the ineffective assistance and filing the motion to

reopen. The court emphasized that there is no per se time period

within which the motion must be filed. In Wang, the court found

no due diligence where the alien discovered the ineffective

assistance in October 2005 and complied with the Matter of

Lozada requirements for reopening in January 2006, but waited

until June 2006 to file the motion to reopen.

(3) Third Circuit: Time limits may be tolled where fraud is shown. 

Borges v. Gonzales, 402 F.3d 398, 406-407 (3d Cir. 2005). In

Borges, the Court also found that the alien acted with requisite due

diligence to resolve his immigration status over the course of five

years. In contrast, the court found the alien in Mahmood v.

Gonzales, 427 F.3d 248 (3rd Cir. 2005) did not demonstrate due

diligence. He allowed his case to lapse twice over one year
page 353 of 365

intervals, without taking steps to inquire about the status of his

case.

(4) Fourth Circuit: No published cases.

(5) Fifth Circuit: No published cases. 

(6) Sixth Circuit: Time limits may be tolled. Harchenko v. INS, 379

F.3d 405, 409-10 (6thCir. 2004). The court found in TapiaMartinez v. Gonzales, 482 F.3d 417 (6th Cir. 2007), that waiting

fifteen months after discovery of counsel’s deficient performance

to raise an ineffective assistance claim, does not satisfy the due

diligence requirement. In a case not relating to ineffective

assistance of counsel, the court ruled the petitioner did not

establish due diligence where (1) on July 5, 2005, the Board

dismissed the petitioner’s appeal from the denial of her asylum

application; and (2) on November 22, 2006, the petitioner filed a

motion to reopen based on a marriage to a U.S. citizen, and argued

that the deadline should be equitably tolled. Barry v. Mukasey,

524 F.3d 721 (6th Cir. 2007).

(7) Seventh Circuit: Tolling of numerical limits permitted. Joshi v.

Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004). Tolling of time limits

for motions to reopen in in absentia proceedings. Pervaiz v.

Gonzales, 405 F.3d 488, 490 (7th Cir. 2005). Due diligence is

required. Patel v. Gonzales, 442 F.3d 1011 (7th Cir. 2006). In

Patel, the court found that filing a motion to reopen, two years after

actual knowledge of a deportation order did not constitute due

diligence. In Gaberov v. Mukasey, 516 F.3d 590 (7th Cir. 2008),

the court found that due diligence existed in a case where, after

trying for several years to ascertain the status of his case, the

petitioner filed a motion to reopen several months after receiving a

“bag and baggage” letter from the Department of Homeland

Security. In Yuan Gao v. Mukasey, 519 F.3d 376 (7th Cir. 2008),

the court ruled that equitable tolling does not restart the motion to

reopen clock. Rather, a petitioner who learns the facts necessary to

file a motion to reopen within the deadline must do so by the

deadline.

(8) Eighth Circuit: Equitable tolling of time limits permitted sparingly,

when extraordinary circumstances beyond the alien’s control

prevented timely filing. Hernandez-Moran v. Gonzales, 408 F.3d

496 (8thCir. 2005). Due diligence is required. Habchy v. Gonzales,

471 F.3d 858, (8th Cir. 2006). In Habchy, the court held that

waiting four months to file a second motion to reopen absent any

explanation for delay, does not constitute due diligence. 
page 354 of 365

(9) Ninth Circuit: Time and numerical limits may be equitably tolled

“during periods when a petitioner is prevented from filing because

of deception, fraud, or error, as long as the petitioner acts with due

diligence in discovering the deception, fraud or error.” Iturribarria

v. INS, 321 F.3d 889, 897 (9th Cir. 2003). In Singh v. Gonzales,

491 F.3d 1090 (2d Cir. 2007), the Ninth Circuit found that due

diligence did not exist when the alien waited six months after

becoming suspicious that his prior counsel acted ineffectively

before consulting another attorney regarding reopening his case on

ineffective assistance grounds. In Ghahremani v. Gonzales, 498

F.3d 993 (9th Cir. 2007), however, the Ninth Circuit found that the

alien acted with due diligence in filing a motion to reopen. The

Ghahremani court cited the alien’s “unbroken efforts to retain

competent counsel” in the period before he learned that a previous

attorney acted ineffectively. Id. See also Sun v. Mukasey, 555 F.3d

802 (9th Cir. 2009). In addition, the Ninth Circuit has tolled

numerical limits where a nonlawyer engages in ineffective

assistance. Fajardo v. INS, 300 F.3d 1018 (9th Cir. 2002). 

(10) Tenth Circuit: Equitable tolling is permitted, and due diligence

required. Riley v. INS, 310 F.3d 1253, 1258 (10thCir. 2002).

(11) Eleventh Circuit: Time limitations can be equitably tolled where

the alien has filed a defective pleading during the statutory period

or where the alien has been induced or tricked by misconduct into

allowing the filing deadline to pass. Abdi v. Att’y Gen., 430 F.3d

1148 (11th Cir. 2005). Time limitations may not be tolled for

motions to reopen in absentia deportation orders, on account of

ineffective assistance of counsel. Anin v. Reno, 188 F.3d 1273

(11th Cir. 1999).

3. A motion to reopen or reconsider based upon a claim of ineffective assistance

of counsel was replaced by the Attorney General with a claim based on

deficient performance of counsel. Matter of Compean, 24 I&N Dec. 710

(A.G. 2009), vacated by Matter of Compean, Bangaly, & J-E-C-, 25 I&N Dec.

1 (A.G. 2009). 

a. To prevail on a deficient performance of counsel claim, the alien bears

the burden of establishing three elements:

(1) The alien must show that his lawyer’s errors were “egregious.”

(2) In cases where the alien files an untimely motion to reopen, the

alien must demonstrate that he exercised due diligence in

discovering and seeking to cure counsel’s alleged deficient

performance. If the alien demonstrates due diligence, the judge

may toll the filing period in the exercise of discretion.
page 355 of 365

(3) The alien must establish prejudice arising from the lawyer’s errors

by showing that, but for the deficient performance, it is more likely

than not that the alien would have been entitled to the ultimate

relief sought.

b. The alien must also comply with certain documentary requirements. In

addition to a detailed affidavit setting forth the facts that form the basis

of the deficient performance of counsel claim, the alien must also

submit: 

(1) A copy of the agreement, if any, the alien had with the lawyer

whose performance the alien alleges was deficient. 

(2) A copy of a letter to the alien’s former lawyer setting forth the

lawyer’s deficient performance and a copy of the lawyer’s

response, if any. 

(3) A completed and signed complaint addressed to the appropriate

State bar or other disciplinary authorities. There is no requirement

that the complaint actually be filed. 

(4) If the alien’s claim is that his former lawyer failed to submit

something to the IJ, the alien must attach the allegedly omitted

item to the motion.

(5) If the alien is represented by counsel in seeking reopening, the

motion shall contain the following signed statement of the new

attorney: “Having reviewed the record, I express a belief, based on

a reasoned and studied professional judgment, that the performance

of my client’s former counsel fell below minimal standards of

professional competence.” 

4. A motion to reopen or reconsider based upon a claim of ineffective assistance

of counsel was replaced by Attorney General Mukasey with a claim based on

deficient performance of counsel. Matter of Compean, 24 I&N Dec. 710

(A.G. 2009). However, Attorney General Holder vacated Matter of Compean,

24 I&N Dec. 710 (A.G. 2009) pending the outcome of a rulemaking process

and directed the Board and IJs to apply the standards established by Matter of

Lozada, 19 I&N Dec. 637 (BIA 1988), for reviewing motions to reopen based

on claims of ineffective assistance of counsel. Matter of Compean, Bangaly &

J-E-C-, 25 I&N Dec. 1 (A.G. 2009).

I. Motion to reopen in order to apply for adjustment of status
page 356 of 365

1. The Board originally held that an IJ was not required to continue a deportation

case pending the adjudication of a visa petition filed in the respondent’s

behalf. Matter of Kotte, 16 I&N Dec. 449 (BIA 1978).

2. Following a change in the regulations, the Board held that a MTR in order to

apply for adjustment of status should be granted by an IJ even if the visa

petition which forms the basis for the adjustment is filed simultaneously with

the application for adjustment of status provided a prima facie approvable visa

petition and adjustment application have been submitted; Matter of Garcia, 16

I&N Dec. 653 (BIA 1978). The Board added, however, that an IJ may still

deny a MTR if the visa petition is frivolous or if the adjustment application

would be denied on statutory or discretionary grounds even if the visa petition

were approved.

3. The Board modified its decision in Matter of Garcia in cases involving

applications for adjustment of status based on marriages entered into during

which administrative or judicial proceedings are pending regarding the alien’s

right to be admitted or remain in the U.S. After the Garcia decision, Congress

amended sections 204(g) and 245(e) of the Act (in 1986 and again in 1990) to

preclude an alien from adjusting status based on a marriage that was entered

into after the commencement of deportation proceedings and to bar the

approval of a visa petition to accord immediate relative or preference status

based upon such a marriage until the beneficiary of the petition has resided

outside the U.S. for a 2-year period following the marriage, unless the alien

establishes “by clear and convincing evidence to the satisfaction of the

Attorney General that the marriage was entered into in good faith and . . . was

not entered into for the purpose of procuring the alien's entry as an

immigrant.” Matter of Garcia created a presumption that, for the purposes of a

MTR, the relationship claimed in a visa petition supporting the application for

adjustment of status was presumed to be bona fide unless clear ineligibility

was apparent in the record. The Board stated that the amendments to sections

204(g) and 245(e) created a rebuttable presumption that marriages contracted

after the institution of deportation proceedings are fraudulent. The decision on

whether that presumption is overcome is up to the DD with whom the visa

petition is filed for DDs have exclusive jurisdiction over visa petitions. The

Board concluded that an IJ’s inquiry to determine whether the presumption is

overcome would be a substantial and unwarranted intrusion into the DD's

authority over the adjudication of visa petitions and held that all MTRs for

consideration of adjustment of status based on unadjudicated visa petitions

within the ambit of sections 204(g) and 245(e) should be denied. Matter of

Arthur, 20 I&N Dec. 475 (BIA 1992). In Matter of H-A-, 22 I&N Dec. 728

(BIA 1999), the Board found that Matter of Arthur was not inconsistent with

the motions to reopen regulations at 8 C.F.R. §§ 3.2(c)(2) and 3.23(b)(4)(i)

(effective July 1, 1996) [now 8 C.F.R. §§ 1003.2(c) and 1003.23(b)(4)(i)]

which allowed only one MTR which must be filed within 90 days of the

decision.
page 357 of 365

4. Finding that its policy in Matter of Arthur coupled with the regulation limiting

respondents to one MTR filed within 90 days of a final administrative decision

and the Service’s inability to adjudicate visa petitions within that time

deprived a small class of respondents of the opportunity to have applications

for adjustment of status adjudicated by an IJ, the Board withdrew from Matter

of Arthur. Based on a revision of the Service’s policy on joining untimely

MTRs for adjustment of status and its no longer requiring “extraordinary and

compelling circumstances” in order to join in such a motion, the Board held in

Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), that a properly filed MTR

may be granted, in the exercise of discretion, to provide an alien an

opportunity to pursue an application for adjustment of status where the

following factors are present:

a. The motion is timely filed;

b. The motion is not numerically barred by the regulations;

c. The motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA

1996) [where the respondent lost eligibility for relief by overstaying a

period of voluntary departure] or on any other procedural grounds;

d. The motion presents clear and convincing evidence indicating a strong

likelihood that the respondent’s marriage is bona fide; and

e. The Service either does not oppose the motion or bases its opposition

solely on Matter of Arthur, 20 I&N Dec. 475 (BIA 1992).

(1) The Second, Ninth, and Sixth Circuits have held that MTRs should

not be denied solely because DHS opposed the motion. Ahmed v.

Mukasey, 548 F.3d 768 (9th Cir. 2008); Melnitsenko v. Mukasey,

517 F.3d 42 (2d Cir. 2008); Sarr v. Gonzales, 485 F.3d 354 (6th

Cir. 2007). However, the Third Circuit has found that, under

Matter of Verlarde, DHS opposition is an appropriate reason for

denying a MTR. Bhiski v. Ashcroft, 373 F.3d 363 (3d Cir. 2004).

The Board has clarified that the fifth factor does not grant DHS a

veto power over an otherwise approvable Velarde motion, but that

the IJ must consider the merits of DHS opposition. Matter of

Lamus, 25 I&N Dec. 61 (BIA 2009).

J. Motion to reopen to apply for cancellation of removal under section 240A of the

Act

1. A motion to reopen for consideration or further consideration of an application

for cancellation of removal under section 240A(a) or section 240A(b) of the

Act may be granted only if the alien demonstrates that he or she was

statutorily eligible for such relief, under section 240A(d)(1), prior to the

service of the notice to appear, or prior to the commission of an offense
page 358 of 365

referred to in section 212(a)(2) of the Act that renders the alien inadmissible

or removable under section 237(a)(2) of the Act. 

2. The provision in 8 C.F.R. § 1003.23(b)(3) (2005) that an applicant for

cancellation of removal under section 240A(b) (2000), must demonstrate

statutory eligibility for that relief prior to the service of a notice to appear

applies only to the continuous physical presence requirement and has no

bearing on the issues of qualifying relatives, hardship, or good moral

character. Matter of Bautista-Gomez, 23 I&N Dec. 893 (BIA 2006).

K. Where to file the motion

1. In general

a. The general rule is that the MTR or reconsider is filed with the maker of

the last decision in the case. See 8 C.F.R. § 1003.23(b)(1).

b. When the Board dismisses an appeal solely for lack of jurisdiction,

without adjudication on the merits, the appeal is deemed nugatory, and

the IJ retains jurisdiction over any subsequent motion to reopen or

reconsider. Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974).

c. However, where the Board dismisses an appeal as untimely, without

adjudication on the merits, the Board retains jurisdiction over a motion

to reconsider its dismissal of the untimely appeal to the extent that the

motion challenges the finding of untimeliness or requests consideration

of the reasons for untimeliness. Matter of Lopez, 22 I&N Dec. 16 (BIA

1998).

2. Motions to reopen or reconsider decisions of the Board

a. 8 C.F.R. § 1003.2(g)(2)(i) provides that a MTR or motion to reconsider a

decision of the Board pertaining to proceedings before an IJ shall be

filed directly with the Board.

b. 8 C.F.R. § 1003.2(g)(2)(ii) provides that a MTR or motion to reconsider

a decision of the Board pertaining to a matter initially adjudicated by an

INS officer shall be filed with the officer of the INS having

administrative control over the record of proceeding.

3. Motions to reopen or reconsider decisions of IJs

a. 8 C.F.R. § 1003.23(b)(ii) provides that MTRs or reconsider a decision of

an IJ must be filed with the Immigration Court having administrative

control over the ROP.

L. Sua sponte reopening or reconsideration
page 359 of 365

1. Although sections 240(c)(5) and (6) of the Act place time limits on motions to

reopen or reconsider, 8 C.F.R. § 1003.23(b) provides that an IJ may reopen or

reconsider a decision on his or her own motion at any time.

2. The Board has this same authority under 8 C.F.R. § 1003.2(a). However, in a

decision rendered before IIRIRA when motions to reconsider were governed

only by the regulations, the Board held that its power to reopen or reconsider

cases sua sponte is limited to exceptional circumstances and is not meant to

cure filing defects or circumvent the regulations, where enforcing them might

result in hardship. Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

3. Where an alien has filed an untimely motion to reopen alleging that the INS

failed to prove the alien’s removability, the burden of proof no longer lies with

the Service to establish removability, but shifts to the alien to demonstrate that

an exceptional situation exists that warrants reopening by the Board on its own

motion. Matter of Beckford, 22 I&N Dec. 1216 (BIA 2000). Where an alien

seeking to reopen removal proceedings failed to demonstrate a substantial

likelihood that the result in his case would be changed if the proceedings were

reopened, by showing that he was not, in fact, removable, he failed to present

an exceptional situation to warrant a grant of his untimely motion. Id.

4. In order for a change in the law to qualify as an exceptional situation that

merits the exercise of discretion by the Board of Immigration Appeals to

reopen or reconsider a case sua sponte, the change must be fundamental in

nature and not merely an incremental development in the state of the law (such

as a Board or court decision). Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999).

XIV. Appeals to the Board from decisions made by an IJ

A. Notice of right to appeal

1. A party affected by a decision who is entitled to appeal to the Board from a

decision of an IJ shall be given notice of the right to appeal. 8 C.F.R.

§ 1003.3(a)(1).

B. Filing the appeal

1. An appeal from a decision of an IJ shall be taken by filing a Notice of Appeal

(Form EOIR-26) directly with the Board within the time specified for an

appeal. 8 C.F.R. § 1003.3(a)(1).

C. Time limits for appeal

1. The Notice of Appeal must be filed directly with the Board within 30 calendar

days after the stating of an IJ’s oral decision or the mailing of an IJ’s written

decision. 8 C.F.R. § 1003.38(b). If the final date for filing falls on a Saturday,
page 360 of 365

Sunday or on a legal holiday, the appeal time is extended to the next business

day. Id. 

a. The 30-day period set forth in 8 C.F.R. § 1003.38(b) for filing an appeal

to the Board is mandatory and jurisdictional, and it begins to run upon

the issuance of a final disposition in a case. Matter of Jean, 23 I&N Dec.

373 (A.G. 2002).

b. Neither the INA nor the regulations grant the Board authority to extend

the thirty-day time limit for filing an appeal to the Board. Matter of

Liadov, 23 I&N Dec. 990 (BIA 2006).

c. The Board’s authority under 8 C.F.R. § 1003.1(c) to certify cases to

itself in its discretion is limited to exceptional circumstances and is not

meant to be used as a general cure for filing defects or to otherwise

circumvent the regulations, where enforcing the regulations might result

in hardship. Matter of Jean, 23 I&N Dec. 373 (A.G. 2002). A short

delay by an overnight service is not a rare or extraordinary event that

would warrant consideration of an untimely appeal on certification. 

Matter of Liadov, 23 I&N Dec. 990 (BIA 2006).

2. The date of filing of the Notice of Appeal is the date the Notice is received by

the Board. 8 C.F.R. § 1003.38(c).

3. There is no authority in the regulations to extend the time for filing an appeal. 

Matter of Correa-Garces, 20 I&N Dec. 451 (BIA 1992); Matter of G-Z-, 5

I&N Dec. 295 (BIA 1953). Nor is there authority for an IJ to reopen a case on

his own motion for the sole purpose of permitting a late appeal to be taken. 

Matter of D-, 5 I&N Dec. 520 (BIA 1953).

D. The appealing parties 

1. The appeal parties are only those who are covered by the decision and are

named in the Notice of Appeal. 8 C.F.R. § 1003.3(a)(1).

E. Fee for appeal

1. The Notice of Appeal must be accompanied by a check, money order, or fee

waiver request in satisfaction of the fee requirements of 8 C.F.R. § 1003.8. 8

C.F.R. § 1003.3(a)(1). 

2. Waiver of fees

a. The Board may, in its discretion, authorize the prosecution of any appeal

or motion over which it has jurisdiction without payment of the required

fee. 8 C.F.R. § 1003.8(a)(3).
page 361 of 365

b. In any case in which an alien or other party affected is unable to pay the

fee fixed for an appeal or motion, he or she shall file with the Notice of

Appeal or motion, an Appeal Fee Waiver Request (Form EOIR-26A). 8

C.F.R. § 1003.8(a)(3).

c. If the request does not establish the inability to pay the required fee, the

appeal or motion will not be deemed properly filed. 8 C.F.R.

§ 1003.8(a)(3).

F. Representation by counsel

1. If the respondent is represented, a Notice of Entry of Appearance as Attorney

or Representative Before the Board (Form EOIR-27) must be filed with the

Notice of Appeal. 8 C.F.R. § 1003.3(a)(1).

G. Proof of service

1. The appeal must reflect proof of service of a copy of the appeal and all

attachments on the opposing party. 8 C.F.R. § 1003.3(a)(1).

2. An appeal and all attachments must be in English or accompanied by a

certified translation. 8 C.F.R. § 1003.3(a)(1).

3. An appeal is not properly filed unless it is received at the Board, along with all

required documents, fees or fee waiver requests, and proof of service, within

the time allowed for filing. 8 C.F.R. § 1003.3(a)(1).

H. Waiving Appeal

1. A notice of appeal may not be filed by any party who has waived appeal

pursuant to 8 C.F.R. § 1003.39. 8 C.F.R. § 1003.3(a)(1).

2. 8 C.F.R. § 1003.39 provides that, except when certified to the Board, the

decision of an IJ becomes final upon waiver of appeal or upon expiration of

the time to appeal if no appeal is taken whichever comes first.

a. Prior to the amendment of an earlier version of this regulation, effective

April 6, 1992, the Board would usually accept a timely filed appeal even

if the alien had waived appeal at hearing. Because of the addition to the

regulation of the words "whichever occurs first", the Board held that the

decision of an IJ becomes final immediately upon the waiver of an

alien's right to appeal and that the Board is without jurisdiction to

adjudicate an appeal in such a case. Matter of Shih, 20 I&N Dec. 697

(BIA 1993).

b. Later, the Board held that a party wishing to challenge the validity of an

appeal waiver may file either a motion to reconsider with the IJ or an
page 362 of 365

appeal directly with the Board. Matter of Patino, 23 I&N Dec. 74 (BIA

2001).

c. However, the Board has held that an unrepresented alien who accepts an

IJ’s decision as “final” does not effectively waive the right to appeal

where the IJ failed to make clear that such acceptance constitutes an

irrevocable waiver of appeal rights; therefore, the Board has jurisdiction

to consider the alien’s appeal. Matter of Rodriguez-Diaz, 22 I&N Dec.

1320 (BIA 2000).

(1) In footnote #2 of the case, the Board suggested the following

colloquy: “You have the right to appeal my decision. You do not

have to decide today if you want to appeal, but you should decide

soon. You can also give up your right to appeal by waiving it. If

you want to appeal my decision, or if you want to think about

appeal and decide later, you must reserve appeal now. If you

reserve appeal, you will have 30 days from today to file your

appeal with the Board of Immigration Appeals. Your notice of

appeal must actually arrive at and be received by the Board within

30 days. Your appeal right will be lost if the notice of appeal

arrives late. If you do not want to appeal my decision, you may

waive appeal. If you waive appeal, my decision becomes final, and

your case is completely finished. You cannot change your mind

later and try to file an appeal. Do you understand? Do you want to

reserve appeal or waive appeal?”

(2) See also Narine v. Holder, 559 F.3d 246 (4th Cir. 2009) (holding

that an alien did not waive appeal where his counsel withdrew

before the final hearing, former counsel had advised him about

voluntary departure but not about waiving appeal, and there was no

indication that the petitioner clearly understood what the IJ meant

in reference to a “final decision”). 

d. The Board also held that if an alien wishes to raise the issue regarding

whether his waiver of appeal was knowingly and intelligently made, he

should file a motion to reopen with the IJ. Matter of Shih, 20 I&N Dec.

697 (BIA 1993).

3. Departure from the U.S. of a person who is the subject of deportation (sic)

proceedings, prior to the taking of an appeal from a decision in his or her case

shall constitute a waiver of his or her right to appeal. 8 C.F.R. § 1003.3(e).

I. Standard of review on appeal

1. The Board has held that, under 8 C.F.R. § 1003.1(d)(3), it should defer to the

factual findings of an IJ, unless they are clearly erroneous, but it retains

independent judgment and discretion, subject to applicable governing
page 363 of 365

standards, regarding pure questions of law and the application of a particular

standard of law to those facts. In determining whether established facts are

sufficient to meet a legal standard, such as “well-founded fear,” the Board has

the authority to weigh the evidence in a manner different from that accorded

by the IJ, or to conclude that the foundation for the IJ’s legal conclusions was

insufficient or otherwise not supported by the evidence of record. Matter of

A-S-B-, 24 I&N Dec. 493 (BIA 2008).

a. The Third Circuit held that Matter of A-S-B- incorrectly interprets the

Board’s standard of review for a well-founded fear of future persecution

in asylum cases. The Third Circuit held that the process of forecasting

future events is a factual inquiry in an asylum case, and the Board should

review an IJ’s forecasting of future events under the clearly erroneous

standard. Huang v. Holder, 620 F.3d 372 (3d Cir. 2010).

2. The Board reviews de novo an IJ’s prediction or finding regarding the

likelihood that an alien will be tortured, because it relates to whether the

ultimate statutory requirement for establishing eligibility for relief from

removal has been met and is therefore a mixed question of law and fact, or a

question of judgment. Matter of V-K-, 24 I&N Dec. 500 (BIA 2008). The

Third Circuit disagreed, holding that the Board erred in Matter of V-K-, in

finding that an IJ’s assessment of future torture is not a finding of fact because

the events have not occurred. Rather, when the Board reviews an IJ’s

determination regarding “what is likely to happen to the petitioner if removed”

it is a factual question to be reviewed for clear error, while the IJ’s

determination regarding whether “what is likely to happen” would constitute

torture is a legal determination to be reviewed de novo. Kaplun v. Att’y Gen.,

602 F.3d 260 (3d Cir. 2010).

J. Interlocutory appeals

1. As a general rule, the Board does not entertain appeals from interlocutory

decisions of an IJ, such as decisions on change of venue, admissibility of

evidence, etc. Matter of Victorino, 18 I&N Dec. 259 (BIA 1982); Matter of

Ruiz-Campuzano, 17 I&N Dec. 108 (BIA 1979).

2. Only where a significant issue is raised which affects the administration of the

immigration laws will the Board accept an interlocutory appeal. Matter of

Victorino, 18 I&N Dec. 259 (BIA 1982); Matter of Alphonse, 18 I&N Dec.

178 (BIA 1981); Matter of Wadas, 17 I&N Dec. 346 (BIA 1980).

K. Appeals from in absentia orders of removal

1. The Board lacks jurisdiction to consider an appeal from an in absentia order in

removal proceedings where section 240(b)(5)(C) of the Act provides that such

an order may only be rescinded by filing a motion to reopen with the IJ. 

Matter of Guzman, 22 I&N Dec. 722 (BIA 1999).
page 364 of 365

L. Withdrawal of appeal

1. In any case in which an appeal has been taken, the party taking the appeal may

file a written withdrawal thereof with the office at which the Notice of Appeal

was filed. 8 C.F.R. § 1003.4. (This may appear to be left over from the time

that Notices of Appeal were filed with the Immigration Court rather than

directly with the Board. However, it still applies to appeals from decisions by

the INS because those Notices of Appeal are filed with the INS and then

forwarded with the record to the Board.)

a. If the record in the case has not been forwarded to the Board on appeal

(as is the case in appeals from INS decisions), the decision in the case

shall be final as if no appeal had been taken. 8 C.F.R. § 1003.4.

b. If the record has been forwarded to the Board, the withdrawal shall also

be forwarded there and, if no decision on the case has been made by the

Board, the decision in the case shall be final as if no appeal had been

taken. 8 C.F.R. § 1003.4.

2. Departure from the U.S. of a person who is the subject of deportation

proceedings, prior to the taking of an appeal from a decision in his or her case

shall constitute a waiver of his or her right to appeal. 8 C.F.R. § 1003.3(e).

3. Departure from the U.S. by a person who is the subject of deportation or

removal proceedings (other than an arriving alien defined in 8 C.F.R.

§ 1001.1(q)), subsequent to the taking of an appeal, but prior to a decision

thereon, shall constitute a withdrawal of the appeal and the decision in the

case shall be final as if no appeal had been taken. 8 C.F.R. § 1003.4.

a. The exception of arriving aliens seems to be for the purpose of codifying

the Board decision that departure from the U.S. by an applicant for

admission in exclusion proceedings after the taking of an appeal from an

IJ’s order denying admission does not constitute withdrawal of the

appeal. Matter of Keyte, 20 I&N Dec. 158 (BIA 1990).

4. A respondent’s departure from the United States is not a constructive

withdrawal under 8 C.F.R. § 1003.4 of an appeal by the Department of

Homeland Security. Matter of Luis, 22 I&N Dec. 747 (BIA 1999). It also

does not render DHS’s appeal moot. Id.

M. Certification

1. 8 C.F.R. § 1003.1(c) provides that an IJ may also certify a case to the Board.

2. 8 C.F.R. § 1003.7 provides that when a case is certified to the Board, the alien

or other party affected shall be given notice of certification.
page 365 of 365

3. It also provides that an IJ may certify a case only after an initial decision has

been made and before an appeal has been taken.

4. It also provides that if it is known at the time the decision is rendered that the

case will be certified, the notice of certification shall be included in the

decision and no further notice of certification shall be required.

N. Remand from Board for background and security checks.

1. When the Board has remanded the record for completion of background and

security checks and new information that may affect the alien’s eligibility for

relief is revealed, the IJ has discretion to determine whether to conduct an

additional hearing to consider the new evidence before entering an order

granting or denying relief. Matter of Alcantara-Perez, 23 I&N Dec. 882

(Board 2006). When a proceeding is remanded for background and security

checks, but no new information is presented as a result of those checks, the IJ

should enter an order granting relief. Id. 

2. When the Board remands a case to the IJ for the appropriate background

checks, the IJ reacquires jurisdiction over the proceedings and may consider

additional evidence regarding new or previously considered relief if the

evidence meets the requirements for reopening the proceedings. Matter of MD-, 24 I&N Dec. 138 (BIA 2007). When a case is on remand for completion of

background checks, the IJ is required to enter a final order granting or denying

the requested relief. Id.