Immigration precedents

The applicant, a Mexican citizen who overstayed a voluntary departure period and later obtained U-1 nonimmigrant status, sought adjustment of status; the director denied it and certified the novel legal issue to the AAO. The AAO held that the section 240B(d)(2) exception to civil penalties for certain domestic violence victims does not extend to U-1 nonimmigrants, but that section 240B(d)(1) penalties apply only where the failure to depart was voluntary, and remanded for further proceedings.

The petitioner, a hematology-oncology specialist practicing in an HHS-designated HPSA and MUA/P, was denied a physician national interest waiver by the Texas Service Center on the ground that specialists do not qualify. The AAO held that medical specialists, not only primary care physicians, may be eligible for the physician NIW under INA 203(b)(2)(B)(ii) when they agree to practice in an HHS-designated shortage area, withdrew the Director's decision, and approved the petition.

A Peruvian lawful permanent resident registered to vote while applying for a driver's license and voted in the 2006 general election; the Immigration Judge found her removable under INA section 237(a)(6)(A). The Board of Immigration Appeals upheld removal, holding that a violation of 18 U.S.C. § 611(a) is a general intent offense requiring no proof that the alien knew voting was unlawful, and that she satisfied none of the statute's three exceptions.

A restaurant's I-140 for a cook was revoked; the beneficiary had filed a fictitious marriage certificate with a separate I-130 but never married or attempted to marry. The AAO held that submitting false documents about a nonexistent marriage does not by itself constitute 'entering into' or 'attempting or conspiring to enter into' a marriage under INA 204(c), though it may support inadmissibility under INA 212(a)(6)(C)(i) at adjustment, and sustained the appeal to reinstate the I-140 approval.

A U.S. subsidiary providing marketing, sales, and logistics services to its Hong Kong affiliate for a service fee was denied classification as a multinational manager or executive because it did not transact directly with unaffiliated third parties. The AAO held that the 'doing business' definition at 8 C.F.R. § 204.5(j)(2) contains no unaffiliated-third-party requirement and that regular, systematic, and continuous provision of goods or services to related companies within the multinational organization suffices; the Director's decision was withdrawn and the petition approved.

The respondent, born out of wedlock in Jamaica, claimed derivative citizenship under section 320(a) of the Act after his father naturalized, but the Immigration Judge found he was not a legitimated 'child' under the Hines precedent. The Board overruled Hines and Rowe in part and reaffirmed Clahar and Goorahoo, holding that a person born out of wedlock qualifies as a legitimated child under section 101(c)(1) if born in, or residing or domiciled in, a country or State (including a U.S. State) that has eliminated all legal distinctions between children based on parental marital status, and terminated the removal proceedings.

The respondent, a conditional permanent resident admitted on the basis of marriage, sought an INA 216(c)(4)(A) extreme hardship waiver based on separation from her second husband and later-born children. The Board of Immigration Appeals held that the relevant period for determining extreme hardship is the 2-year period for which the alien was admitted as a conditional permanent resident, sustained DHS's appeal, and remanded for further proceedings.

The respondent, a Venezuelan lawful permanent resident, was convicted of selling cocaine under Florida Statutes section 893.13(1)(a)(1); the Immigration Judge found the offense an aggravated felony and denied cancellation of removal, asylum, and withholding of removal. The Board of Immigration Appeals held that the Florida offense, which lacks a mens rea as to the illicit nature of the substance but requires knowledge of its presence and provides an affirmative defense, qualifies as an 'illicit trafficking' aggravated felony under section 101(a)(43)(B) of the Act, while remanding the Convention Against Torture deferral claim for further proceedings.

The respondent, born in Jamaica in 1976, entered as a lawful permanent resident in 1981; his mother naturalized in 1988, his parents divorced in 1990, and he turned 18 in 1994. The Board of Immigration Appeals, following Matter of Baires, held that a child who satisfies all conditions of former section 321(a) of the Immigration and Nationality Act before age 18 acquires United States citizenship regardless of whether the naturalized parent obtained legal custody before or after naturalization, and it sustained the appeal and terminated removal proceedings.

The respondent, a native of Venezuela, entered with a student visa in 1982, later obtained a U.S. passport using a false Florida birth certificate, reentered on that passport in 2001, and was convicted in 2002 under 18 U.S.C. § 1001(a)(2). The Board of Immigration Appeals held that an alien who enters by falsely claiming U.S. citizenship has not been inspected and admitted under section 101(a)(13)(A) of the Act, and that the minimum conduct under § 1001(a)(2) is a crime involving moral turpitude, affirming inadmissibility and pretermission of cancellation of removal while vacating voluntary departure.

The Filipino respondents sought adjustment under INA section 245(i), arguing the female respondent was grandfathered by an April 2001 I-140 petition and that both were grandfathered through an I-130 filed for the male respondent in 2000. The Board held the I-140 was not approvable when filed and that a spouse relationship arising after April 30, 2001 does not confer derivative grandfathered status, though such accompanying or following-to-join family members may still adjust as dependents of a grandfathered principal.

The respondent, a native of Jamaica, was convicted of simultaneously possessing less than 10 grams of marijuana and a plastic baggie as drug paraphernalia; the Immigration Judge found the INA § 237(a)(2)(B)(i) exception for a single offense involving personal-use possession of 30 grams or less of marijuana applied and set bond, and DHS appealed. The BIA held that the exception requires a circumstance-specific inquiry into the conduct rather than a categorical inquiry into statutory elements, and that multiple statutory crimes closely related to a single incident of small-quantity personal possession, none inherently more serious than simple possession, may constitute a single offense; the appeal was dismissed.