Immigration precedents

The Board of Immigration Appeals considered a respondent's motion to reopen based on her return under advance parole and overruled Matter of Arrabally and Yerrabelly, holding that a temporary departure pursuant to a grant of advance parole is a 'departure' under INA section 212(a)(9)(B)(i)(II) and may render an alien inadmissible. The Board denied the untimely, number-barred motion to reopen and applied the new holding prospectively only.

Atlantic herring fishermen challenged a National Marine Fisheries Service rule requiring vessels to pay for at-sea observers, and both circuits upheld it under Chevron's two-step framework. The Supreme Court overruled Chevron, holding that the APA requires courts to exercise independent judgment on whether an agency has acted within its statutory authority and bars deference to an agency's interpretation merely because a statute is ambiguous.

The respondent, a Rwandan refugee, willfully misrepresented his name, departure date, residence, and political organization membership on his Form I-590 and supporting documents; the Immigration Judge found him inadmissible and removable and found evidence that he participated in the 1994 Rwandan genocide. The Board of Immigration Appeals dismissed his appeal, holding that Immigration Judges and the Board lack authority to recognize the equitable defense of laches in removal proceedings, that his identity misrepresentations were material under section 212(a)(6)(C)(i), and that he failed to show by a preponderance of the evidence that the genocide bar at section 212(a)(3)(E)(ii) did not apply, barring all relief except deferral of removal under the Convention Against Torture.

Sanchez entered the United States unlawfully in 1997 and received Temporary Protected Status (TPS) in 2001; he later sought adjustment of status under INA §245. A unanimous Supreme Court held that TPS gives a recipient nonimmigrant status for adjustment purposes but does not constitute an 'admission,' so an unlawful entrant cannot obtain LPR status merely by virtue of TPS.

The respondent sought special rule cancellation of removal under section 240A(b)(2) of the Act based on spousal abuse, but his former spouse was neither a U.S. citizen nor a lawful permanent resident during the marriage and the abuse, and the Immigration Judge denied the application. The Board of Immigration Appeals held that an applicant must show the abuser was his or her lawful spouse and held U.S. citizenship or lawful permanent resident status at the time of the abuse, even if that status was later terminated or revoked.

The beneficiary's first visa petition, filed by his former U.S. citizen wife, was denied for failure to establish a bona fide marriage, but no marriage fraud finding was made; his current U.S. citizen spouse later filed a new visa petition on his behalf. The Board of Immigration Appeals held that where the record contains substantial and probative evidence that the beneficiary's prior marriage was fraudulent and entered into to evade the immigration laws, a subsequent visa petition is properly denied under INA section 204(c), even if the first petition was denied for insufficient evidence of a bona fide marital relationship.

The beneficiary's U.S. citizen former fiancée filed a K-1 fiancé(e) visa petition on his behalf, but the relationship was found to be a sham engagement; USCIS therefore revoked the later I-130 petition filed by his mother. The Board of Immigration Appeals held that conspiring to enter into a marriage to evade immigration laws by seeking a K-1 visa falls under INA section 204(c)(2), and that conspiracy requires an agreement plus an overt act, which the visa filing and interviews supplied.

The petitioner, an automobile manufacturer, sought first preference multinational executive or manager classification for a beneficiary whose German employer FFA had been absorbed by its parent FW; the petitioner argued FW was a successor-in-interest. The AAO held that a petitioner must have a qualifying relationship with the beneficiary's foreign employer at the time of filing and maintain it through adjudication, and that where a corporate restructuring precedes filing, a valid successor entity may establish the foreign employer's continued existence and doing business; the appeal was sustained.

A U.S. citizen filed an I-130 petition for his noncitizen spouse, but USCIS and the BIA found her prior marriage fraudulent based in part on a rental application never disclosed to the couple. The Ninth Circuit held that reliance on undisclosed evidence violated procedural due process and that the 'substantial and probative evidence' standard of proof must be at least a preponderance of the evidence, reversing and remanding.

The petitioner, a Brazilian national, was convicted of assaulting her husband's mistress; the IJ and BIA held the convictions were not 'connected to' the extreme cruelty she suffered and thus the good moral character exception did not apply. The Third Circuit held that 'connected to' unambiguously means 'having a causal or logical relationship,' found the assault arose from confrontations over the husband's affair and was so connected to the cruelty, and vacated the BIA's removal order and remanded.

The respondent, a Mexican national with two DUI convictions and other criminal history during the relevant period, was granted cancellation of removal by an immigration judge; the Board vacated that decision and the Attorney General affirmed on review. The Attorney General held that evidence of two or more DUI convictions during the relevant period establishes a rebuttable presumption that the alien lacked good moral character under INA § 101(f) and is therefore presumptively ineligible for cancellation of removal, and that post-conviction rehabilitation efforts alone do not overcome the presumption.

The Attorney General reviewed two cases in which lawful permanent residents convicted of family violence battery and sentenced to twelve months' imprisonment obtained state-court orders during removal proceedings reducing their sentences below one year to avoid aggravated felony treatment. The Attorney General overruled the tests in Cota-Vargas, Song, and Estrada, holding that state-court orders modifying, clarifying, or otherwise altering a criminal sentence are given effect for immigration purposes only if based on a procedural or substantive defect in the underlying criminal proceeding, and have no effect if based on reasons unrelated to the merits, such as rehabilitation or avoiding immigration consequences.