Immigration precedents

The applicant, who left the United States as an unemancipated minor in his mother's custody, was found excludable after his mother abandoned her lawful permanent resident status and the family remained in Mexico. The Board of Immigration Appeals held that a parent's voluntary and intended abandonment of LPR status is imputed to a minor child in the parent's custody and control, so the child also lost permanent resident status and was not a returning resident immigrant.

A U.S. citizen filed an immediate-relative visa petition for his Australian spouse, and the district director denied it solely because the parties were living apart. The Board of Immigration Appeals held that separation alone cannot support denial where the marriage was valid and not legally dissolved, but separation remains relevant to whether the marriage was a sham at inception; the record was remanded with an opportunity to rebut adverse evidence.

A Mexican citizen obtained an immigrant visa as the spouse of a U.S. citizen while concealing a prior Mexican marriage; a Washington state court later declared that Mexican marriage invalid ab initio. The Board of Immigration Appeals held that the invalidity decree would not be given retroactive effect for immigration purposes where fraud and manipulation of the immigration laws were present, sustaining deportability but granting voluntary departure.

The applicant entered as a lawful permanent resident at age four and returned to Mexico with his parents two years later; the Board held that the parents' abandonment of permanent resident status could be imputed to the minor applicant then in their custody, supporting exclusion as an immigrant without a valid visa. Although his conviction was under the Federal Youth Corrections Act for entry of goods by false statements, the Board held he was still excludable under section 212(a)(23) because a Service officer had reason to believe he was a marihuana trafficker, and the Youth Corrections Act did not bar that charge.

The applicant, a lawful permanent resident employed by a New Jersey-incorporated subsidiary wholly owned by a West German parent, was sent to Germany for two years and sought to preserve residence for naturalization under INA section 316(b). The Regional Commissioner held that because more than 51 percent of the subsidiary's stock was held by a foreign parent, the employer was a foreign rather than an American corporation, so the application did not satisfy section 316(b) and the denial was affirmed.

The petitioner sought a spouse visa based on a marriage in Connecticut, but both parties had previously obtained divorces in the Dominican Republic without evidence that either was a bona fide domiciliary there. The Board of Immigration Appeals held that Connecticut law would not recognize the foreign divorces, making the marriage invalid, and dismissed the appeal. The Board also held that a District Director acts as an adjudicator rather than an adversary in visa petition proceedings, so standing is irrelevant, and that the Service may contest the validity of a foreign divorce.

A lawful permanent resident from Iran was charged with deportability based on grand larceny and malicious trespass, and the issue was whether malicious trespass is a crime involving moral turpitude. The Board of Immigration Appeals held that the record of conviction must first identify the violated statute and, where the statute covers both turpitudinous and non-turpitudinous conduct, the charge, plea, verdict, and sentence must be examined; because the malicious trespass record showed intent to commit petit larceny, the conviction involved moral turpitude.

The applicant, a Guatemalan citizen found excludable for obtaining a nonimmigrant visa by fraud, sought a waiver under INA section 212(i). The Board held that the waiver is limited to spouses, parents, or children of U.S. citizens or lawful permanent residents, and because her U.S. citizen child lived in Guatemala with his father and there was no evidence she had custody or intended to reunite with him in the United States, a favorable exercise of discretion was not warranted.

The applicant, a Chinese citizen and crewman, was previously deported for attempting to desert his vessel and later sought permission to reapply for admission after deportation based on an approved sixth-preference petition. The Commissioner held that a record of immigration violations alone does not establish lack of good moral character, and that recency of deportation may be considered only where poor moral character based on moral turpitude evincing a callous conscience is found; the application was granted.

A U.S. citizen filed a spousal visa petition relying on a delayed birth certificate and a baptismal certificate to establish her U.S. citizenship, and the District Director denied it for insufficient evidence. The Board of Immigration Appeals clarified Matter of Herrera, holding that a delayed birth certificate is not conclusive proof of citizenship and must be evaluated case by case, and remanded for further evidence.

A Peruvian citizen who overstayed his nonimmigrant visitor status had been granted conditional asylum by an immigration judge; the Board sustained the Service's appeal and reversed. The Board held that an overstaying alien is not 'lawfully' in the United States and thus cannot obtain Article 32 Convention relief; that Article 33 did not alter rights and remedies under section 243(h); that immigration judges lack jurisdiction over asylum applications, which lies with the District Director; that a tax levied on all Peruvian citizens traveling abroad is not persecution and generalized undocumented assertions are insufficient; that a five-year delay was not 'affirmative misconduct' amounting to estoppel; and that loss of a job and readjustment to life in Peru are not 'extreme hardship' under section 244(a)(1).

The respondent sought suspension of deportation based on economic hardship in the Dominican Republic and his wife's medical needs. The Board of Immigration Appeals held that country conditions are relevant but must combine with other factors such as advanced age, severe illness, or family ties to establish extreme hardship warranting relief.