Immigration precedents

The Ninth Circuit held that the AAO improperly imposed extra-regulatory evidentiary requirements on the authorship-of-scholarly-articles and judging-the-work-of-others criteria for an extraordinary ability visa, but the error was harmless because Kazarian established only two of the required three types of evidence, so the denial was affirmed.

Rose obtained conditional permanent resident status through marriage, but her petitioning spouse died of a heart attack during the 2-year conditional period; she timely filed Form I-751 and appeared for an interview, yet USCIS denied the petition and terminated her status, and the Immigration Judge later denied relief for lack of a joint filing and of an INA 216(c)(4) waiver. On reconsideration, the BIA held that the 'if not deceased' language in INA 216(c)(1) expressly exempts a surviving spouse from the joint filing and interview requirements, so no separate 216(c)(4) waiver is needed; it vacated the prior decision and remanded for review of the marriage's bona fides under INA 216(d)(1).

Yauri, an arriving alien, filed an untimely motion to reopen more than four years after a final removal order, seeking reopening to pursue adjustment of status before USCIS. The BIA held that USCIS has exclusive jurisdiction over an arriving alien's adjustment application even where an unexecuted final removal order remains outstanding, and that the Board generally lacks authority to reopen proceedings to pursue relief outside its jurisdiction and will not generally exercise sua sponte discretion to reopen for an arriving alien to seek adjustment before USCIS.

Carrillo, a Cuban national paroled into the United States on March 4, 1999, adjusted to lawful permanent resident status on January 30, 2001, under section 1 of the Cuban Refugee Adjustment Act, and committed grand theft in 2004. The Board of Immigration Appeals held that for purposes of section 237(a)(2)(A)(i), the 'date of admission' is the retroactive date set by the Cuban Adjustment Act's rollback provision, not the date adjustment was granted, so the crimes fell outside the 5-year window and removal proceedings were terminated.

A Philippine citizen admitted on a C-1/D crewman visa was found removable and statutorily ineligible for cancellation of removal under section 240A(c)(1) of the Immigration and Nationality Act. The Board of Immigration Appeals upheld the ruling, holding that an alien who obtained a crewman visa and entered in pursuit of employment as a seaman entered as a crewman, regardless of prior employment or a specific vessel assignment.

The respondent, a Mexican citizen, swore on a passport application that she was born in Texas and was convicted under 18 U.S.C. § 1542; she was found inadmissible at the time of adjustment of status under section 212(a)(6)(C)(ii) of the Act. The Board of Immigration Appeals held that a willful false representation of birth in the United States on a passport application constitutes a false representation of U.S. citizenship, making her removable under section 237(a)(1)(A), and that the section 237(a)(1)(H) waiver does not reach that ground.

The beneficiary's aunt filed a fourth-preference petition for her father in 1992, with the daughter as a derivative beneficiary; by the time a visa became available in 2005 she had turned 22 and no longer qualified as a 'child.' The Board of Immigration Appeals held that the automatic conversion and priority date retention provisions of section 203(h)(3) of the Child Status Protection Act do not apply where the new second-preference petition is filed by a different petitioner, and affirmed the September 5, 2006 priority date.

The respondent, born in Mexico in 1986 and admitted as a lawful permanent resident in 2000, claimed derivative U.S. citizenship through his U.S. citizen stepfather, who married his mother in 1994 but never adopted him, after being found removable based on a robbery conviction. The Board of Immigration Appeals held that the terms "child" and "parent" in INA section 101(c) do not encompass stepchildren and stepparents, so he could not derive citizenship under INA section 320(a) through a nonadoptive stepparent, and dismissed the appeal.

A Philippine-born lawful permanent resident was found removable, and the immigration judge granted him a fraud waiver under section 237(a)(1)(H)(i) of the Immigration and Nationality Act. The Board of Immigration Appeals held that the waiver requires a qualifying relationship to a living citizen or permanent resident relative, so the respondent's deceased citizen mother no longer qualified him; it sustained the appeal, vacated the decision, and ordered removal.

The Nigerian-born respondent entered as the child of an F-1 student, and his parents naturalized while he was under 18, but he was not admitted as a lawful permanent resident until after turning 18. The Board of Immigration Appeals held that former section 321(a)(5) of the Immigration and Nationality Act requires an alien to acquire lawful permanent resident status before age 18 to derive citizenship, so it sustained the DHS appeal, vacated the Immigration Judge's termination, and remanded for removal proceedings.

Ogundipe, a Nigerian minister who overstayed his visa, claimed grandfathering under INA § 245(i) based on a 1997 I-360 special immigrant religious worker petition filed by his church, which would allow him to adjust status without leaving the United States. The Fourth Circuit held that whether a petition was 'meritorious in fact' turns on the circumstances at the time of filing rather than the ultimate denial, but upheld the BIA because the record lacked evidence of two years' denominational membership, full-time religious work, and a qualifying job offer.

The respondent, a Salvadoran lawful permanent resident, was convicted by a general court-martial under Article 120(b) of the UCMJ, and the Immigration Judge found him removable as an alien convicted of a crime involving moral turpitude, an aggravated felony, and a child abuse crime. The BIA held that a formal judgment of guilt entered by a general court-martial qualifies as a 'conviction' under section 101(a)(48)(A) of the Act, that the rationale of Gubbels v. Hoy has been superseded by statute after Congress abolished the JRAD, and that an alleged Vienna Convention consular-notification violation does not affect the validity of the conviction for immigration purposes.