Immigration precedents

The respondent sought cancellation of removal and had to show exceptional and extremely unusual hardship to his U.S. citizen children; the Immigration Judge, because no affidavit on the children's care and support was filed, assessed hardship only on the premise that the children would accompany him to Mexico and found none. The Board clarified Matter of Ige: where only one parent is in proceedings and the child will remain in the United States with the other parent, even one unlawfully present, no affidavit or documentary evidence of care and support is required, and it remanded for further consideration.

A Mexican derivative beneficiary failed to file an adjustment application within one year of visa availability, and the Immigration Judge found he did not satisfy the 'sought to acquire' requirement of INA section 203(h)(1)(A). The Board of Immigration Appeals held that a timely filed adjustment application satisfies the requirement, as may a showing of other extraordinary circumstances, particularly where the failure to timely file was beyond the alien's control, while merely consulting an attorney or notario is insufficient.

This case concerned a P-3 'culturally unique' entertainer petition filed for an Argentine Jewish klezmer band; the California Service Center director recommended denial on the ground that the group's fusion style was not culturally unique. The AAO held that 'culturally unique' is not limited to traditional art forms and may include hybrid or fusion artistic expression crossing regional or ethnic boundaries, and found the expert testimony and published materials established the band's music as representative of Argentine Jewish culture, approving the petition.

The respondent, a Macedonian national admitted as a refugee in 1998, was placed in removal proceedings on inadmissibility charges under section 212 after a drug conviction. The Board of Immigration Appeals held that a refugee who has not adjusted status may be placed in removal proceedings without a prior DHS inadmissibility determination, but because a refugee is 'admitted,' any charges must be brought under the deportability grounds of section 237 rather than section 212; the appeal was sustained in part and the record remanded.

The respondent, a native of Armenia charged with failing to maintain her J-1 status, sought administrative closure while her U.S. citizen spouse's prima facie approvable visa petition was pending; the Immigration Judge closed the case over DHS objection. The BIA overruled Matter of Gutierrez, holding that Immigration Judges and the Board have independent authority to administratively close proceedings even if a party opposes, applying a six-factor totality test.

The respondent, a conditional lawful permanent resident whose marriage had ended in divorce, sought a section 216(c)(4)(B) waiver of the joint I-751 filing requirement; DHS denied it as abandoned for failure to respond to a request for evidence. The Immigration Judge reviewed only the DHS record and upheld the denial, but the BIA held that in removal proceedings the alien may introduce, and the Immigration Judge should consider, material and relevant evidence regardless of whether it was previously submitted to DHS, and that the scope of review under 8 C.F.R. § 1216.5(f) is coterminous with the Immigration Judge's ordinary powers and duties; the appeal was sustained, the decision vacated, and the record remanded.

Dann brought a Peruvian nanny to the United States on a fraudulently obtained visa, kept her passport, isolated her, paid her nothing for two years, and threatened to send her back; the Ninth Circuit held that these financial, reputational, immigration, and child-related threats together constituted 'serious harm' sufficient to support a forced labor conviction. The court also upheld sentencing enhancements because the visa fraud facilitated the forced labor, but reversed the restitution order directing accrued child support to be paid to the victim, holding that minor children are the real parties in interest in such arrearages.

D-R-, a native of Bosnia and Herzegovina and U.S. lawful permanent resident, deliberately omitted from his refugee application that he had served as a special police officer during the Bosnian War; the Board of Immigration Appeals held that this omission could have influenced the Government's decision whether to grant refugee status and therefore constituted a willful misrepresentation of a material fact, making him removable under section 237(a)(1)(A) of the Act. The Board also held that the totality of the record—including his command responsibility, presence, his platoon's active participation, and the finding that he knew or should have known of nearby mass executions—supported by clear and convincing evidence that he assisted in the extrajudicial killing of 200 captured Bosnian Muslims under section 237(a)(4)(D), while remanding for consideration of deferral of removal under the Convention Against Torture.

The respondent entered on a K-1 fiance visa, married the petitioner within 90 days in a bona fide marriage, but the marriage had ended by the time his adjustment application was adjudicated. The Board of Immigration Appeals held that a K-1 visa holder may adjust status under INA sections 245(a) and (d) based on a timely bona fide marriage to the fiance petitioner even after divorce, and is not subject to INA section 216 conditional residence if the marriage was more than 2 years old at adjudication.

The applicant sought adjustment of status as a multinational executive or manager, but the underlying Form I-140 filed by his employer was denied; he argued that because his adjustment application had been pending more than 180 days, AC21 section 106(c) (INA section 204(j)) allowed him to continue based on a new job offer. The AAO held that a petition must be 'valid' to begin with in order to 'remain valid' under section 204(j), and an unapproved petition does not become valid merely by filing or the passage of 180 days, so the denial of adjustment was affirmed.

The applicant, employed by ChevronTexaco—a corporation incorporated in the United States whose stock is traded exclusively on U.S. exchanges—sought to preserve continuous residence for naturalization while temporarily working for its overseas subsidiary. The AAO held that such a publicly held corporation qualifies as an 'American firm or corporation' under section 316(b) and that the subsidiary requirement was met, and it set out that applicants in administrative immigration proceedings must prove eligibility by a preponderance of the evidence, with each item assessed for relevance, probative value, and credibility in light of the totality of the evidence.

Quilantan, a Mexican citizen who lost her border crossing card, entered through a port of entry in 2001 without a valid document; the inspector questioned only the driver and waved the car through, and the Immigration Judge found she had not been 'admitted' and pretermitted her section 245(a) adjustment application. The Board of Immigration Appeals reaffirmed Matter of Areguillin, holding that 'admitted' under section 101(a)(13)(A) requires only procedural regularity at entry, not questioning or admission in a particular status, and sustained the appeal and remanded for adjudication of the adjustment application.