Immigration precedents

A lawful permanent resident from Italy was found deportable after a 1983 attempted heroin sale conviction and a later armed attempted robbery conviction, and the immigration judge denied his section 212(c) waiver. The Board of Immigration Appeals held that the gravity of the offense itself may require a showing of unusual or outstanding equities and that rehabilitation is ordinarily required, and it denied relief in discretion despite the equities shown because of the serious crimes and failure to establish rehabilitation.

The respondent moved to reopen, claiming ineffective assistance because prior counsel failed to file an appellate brief. The Board of Immigration Appeals denied the motion and set the Lozada requirements: a detailed affidavit, notice and an opportunity for former counsel to respond, and disclosure of any disciplinary complaint, along with a showing of prejudice.

The respondent obtained adjustment of status as the stepchild of a U.S. citizen, but his mother's marriage was found to be a sham from its inception. The Board of Immigration Appeals held that a sham marriage is invalid from the outset and cannot form the basis for a steprelationship under section 101(b)(1)(B) of the Immigration and Nationality Act, even where an actual family relationship exists, and dismissed the appeal.

The Mother Church of Scientology sought a Schedule A, Group IV labor certification for a beneficiary who had worked as a deputy commanding officer for a Scientology church in Sydney, Australia, arguing that ecclesiastical control within a hierarchical religion established a qualifying relationship. The Commissioner affirmed denial, holding that Group IV requires all L-1 manager/executive requirements, that a qualifying relationship turns on ownership and control, and that the Mother Church's doctrinal control without ownership or ultimate control over the local church's assets and operations was merely a franchisor-franchisee relationship.

A Mexican lawful permanent resident was convicted twice of use and being under the influence of phencyclidine (PCP), and the immigration judge found him deportable. The Board of Immigration Appeals held that under the amended section 241(a)(11) of the Immigration and Nationality Act, a conviction for use of a controlled substance falls within 'any law or regulation' relating to a controlled substance, superseding Matter of Sum.

After a U.S. citizen's immediate-relative visa petition for her husband was approved, the consulate returned it as a suspected sham marriage, and the regional service center revoked approval based solely on allegations that neighbors were unaware of the divorce and remarriage and that the petitioner had never visited the beneficiary, even though the petitioner did not timely respond. The Board of Immigration Appeals held that revocation may rest only on the factual allegations specified in the notice of intention to revoke, and that conclusory, speculative, equivocal, or irrelevant consular observations do not supply 'good and sufficient cause' and cannot support revocation despite the petitioner's failure to respond; the appeal was sustained and approval reinstated.

Abudu, ordered deported after overstaying his visa and a drug conviction, moved to reopen to seek asylum based largely on a 1984 visit from a Ghanaian official. The Supreme Court held that courts of appeals review for abuse of discretion the BIA's denial of reopening on grounds that the movant failed to introduce previously unavailable material evidence or, in asylum cases, failed reasonably to explain the failure to apply for asylum initially, rather than applying a summary-judgment-like strict standard.

A U.S. citizen filed an immediate relative visa petition for her Nigerian spouse; the district director issued a notice of intention to deny containing extensive investigative findings, allowed 15 days to rebut, and denied the petitioner's two-week extension request. The Board of Immigration Appeals held that a petitioner must be given a reasonable opportunity to rebut derogatory evidence before a decision, found the extension request timely and reasonable, and remanded for further proceedings.

A U.S. citizen petitioned for her Iranian spouse, but her prior Hungarian divorce was not recognized because both parties were domiciled in California at the time of the foreign divorce proceeding. The Board of Immigration Appeals held, under California Civil Code section 5001, that a foreign divorce is void in California when both spouses were California domiciliaries, so the subsequent marriage was invalid for immigration purposes.

Dial Auto Repair Shop sought sixth-preference classification based on a permanent labor certification obtained by its dissolved predecessor, Elvira Auto Body, but failed to explain how it acquired the predecessor's business or to show the predecessor could have paid the proffered wage when the labor certification application was accepted for processing. The Commissioner held that successorship in interest is recognized only where the Department of Labor has formally acknowledged the continuing validity of the certification for the successor's employment, and that the petitioner bears the burden of establishing eligibility as of the date the labor certification application was originally accepted; the appeal was dismissed.

A construction company sought sixth-preference classification for a roofer beneficiary who had previously immigrated using the same labor certification and visa petition in 1980, abandoned his residence in 1981, and then sought to reimmigrate on the original certification. The Commissioner affirmed the district director, holding that a labor certification applies only to a specific job opportunity that ceased to exist once the beneficiary was admitted and employed, so the certification could not be reused and the original priority date could not be restored.

A Tongan nonimmigrant overstay sought adjustment of status as a derivative beneficiary after her husband became a permanent resident, claiming she was 'accompanying or following to join' him. The Board held that a derivative beneficiary cannot precede the principal alien to the United States as an immigrant, but once the principal alien acquires permanent resident status, the spouse or child is not barred as a matter of law from adjusting status merely because she preceded the principal alien as a nonimmigrant.