Immigration precedents

A lawful permanent resident from Mexico was charged with deportability based on a third-degree assault conviction under Washington law (causing bodily harm with criminal negligence) and a second-degree robbery conviction. The Board of Immigration Appeals held that the assault conviction was neither a firearm offense (use of a firearm was not an element) nor a crime involving moral turpitude (intentional or reckless conduct was excluded), withdrew from Matter of Baker to that extent, and terminated the proceedings.

The immigration judge denied reopening because the visa petition supporting the adjustment application had not been adjudicated. The Board held that Congress, through the Immigration Marriage Fraud Amendments of 1986 and the Immigration Act of 1990, amended INA sections 204(g) and 245(e) to create a presumption that marriages entered into after proceedings commenced are fraudulent and to require clear and convincing evidence of good faith, which is inconsistent with the reopening presumption of Matter of Garcia; the Board therefore modified Garcia and declined to grant reopening for adjustment applications based on unadjudicated visa petitions falling within those provisions.

The respondent, a lawful permanent resident with burglary and controlled substance distribution convictions, was found deportable and denied section 212(c) relief by the immigration judge for failing to show rehabilitation and unusual or outstanding equities. The Board of Immigration Appeals held that a clear showing of reformation is not an absolute prerequisite to favorable discretion and that cases must be evaluated individually, but dismissed the appeal because the ten-year criminal pattern and drug distribution offenses outweighed even the unusual or outstanding equities found.

The district director revoked the beneficiary's approved visa petition filed by his current U.S. citizen spouse, based on the denial of his prior spouse's petition and a finding that the prior marriage was entered into to evade immigration laws. The Board of Immigration Appeals held that the district director must reach an independent conclusion based on the record rather than give conclusive effect to prior determinations, and that a mere reasonable inference was not the substantial and probative evidence required under INA 204(c); the revocation was reversed and the petition approval reinstated.

A U.S. citizen filed an immediate-relative visa petition for her Philippine niece as her adopted daughter, and the district director revoked approval for failure to meet the two-year residence requirement. The Board of Immigration Appeals held that adoptive relationships, like marriages, may be examined for bona fides and, under Matter of Cuello, required the adoptive parent to show primary parental control during cohabitation; finding the evidence insufficient, it dismissed the appeal.

The respondent was charged in Florida with possession of a controlled substance and, after completing a state pretrial intervention program, the charges were dismissed without prejudice and his record expunged. The Board of Immigration Appeals, applying Matter of Ozkok, held that because there was no plea or adjudication of guilt, no conviction existed for immigration purposes, so he was not barred from establishing good moral character under section 101(f)(3) to seek suspension of deportation.

The beneficiary entered into a sham marriage with a U.S. citizen and sought nonquota status through an I-130 and I-485 filing; the Service denied the later I-130 filed by his new spouse under section 204(c) of the Immigration and Nationality Act. The Board of Immigration Appeals held that even if the current marriage is bona fide, evidence that the beneficiary conspired to enter into a fraudulent marriage or sought immigration status based on it shifts the burden to the petitioner, who failed to rebut the charge, so the appeal was dismissed.

A marine radio communications equipment company sought H-1 nonimmigrant classification for a Danish electrical design engineer; the director denied the petition and the appeal was sustained. The Commissioner held that the position was a profession and that substantial academic course work combined with professional experience and achievement may be equivalent to a bachelor's degree, while ordinary experience alone cannot be equated with a college degree.

Caron International sought H-1 'distinguished merit and ability' classification for a beneficiary with 24 years of textile yarn manufacturing experience but only high-school-level education, to serve as vice-president of manufacturing. The Commissioner held the position was not a 'profession' but that the beneficiary was preeminent as a business executive and the position required such preeminence, sustaining the appeal and approving the petition.

A U.S. citizen filed a second immediate-relative visa petition for her Philippine husband, which the district director denied based on a prior sham-marriage finding without first notifying her of the evidentiary deficiency. The Board of Immigration Appeals held that a petitioner bears a heavy burden on a later petition after a sham-marriage denial, and that where no notice and reasonable opportunity to supplement the record was given, new evidence offered on appeal ordinarily warrants remand.

A Mexican lawful permanent resident convicted of marijuana possession sought a former section 241(f)(2) waiver, but the conviction record did not establish the amount and his testimony, contradicted by police reports, failed to show the offense involved 30 grams or less. The Board held that hearsay is admissible in deportation proceedings unless fundamentally unfair, that police reports are especially appropriate in discretionary relief cases, and that the alien bears the burden of proving eligibility.

An Iranian nonimmigrant student was found deportable based on a Texas conviction for aggravated assault on a peace officer, and the immigration judge denied suspension of deportation and section 212(c) relief. The Board of Immigration Appeals dismissed the appeal, holding that aggravated assault on a peace officer resulting in bodily harm, where the offender knows the victim is an officer performing official duties, is a crime involving moral turpitude, and modified Matter of B- insofar as it required a deadly weapon.