Immigration precedents

A U.S. citizen filed an I-130 petition for her Ghanaian spouse, and USCIS denied it because the beneficiary's prior customary marriage had not been validly dissolved. On appeal, the BIA held that Matter of Kumah was superseded by amendments to Ghanaian law, so affidavits from heads of household (the fathers) may suffice to prove a customary divorce if specified evidentiary requirements are met, while a court decree remains the preferred documentation.

The respondent, born in El Salvador in 1976, argued she derived citizenship under former section 321(a) of the Act after her father naturalized in 1989 and she came under his legal custody in 1990 before turning 18. The Immigration Judge, relying on Third Circuit precedent, held that legal custody had to exist on the date of naturalization. The Board of Immigration Appeals held that a child who satisfies the statutory conditions before age 18 acquires citizenship regardless of whether the naturalized parent obtained legal custody before or after naturalization, sustained the appeal, and remanded for further fact-finding.

The respondent, a Mexican citizen, entered without inspection in 1992, departed in 1998 after accruing more than one year of unlawful presence, and reentered without admission in 1999, then sought adjustment under section 245(i). The Board of Immigration Appeals held that he was inadmissible under section 212(a)(9)(C)(i)(I) and that this inadmissibility barred him from satisfying the admissibility requirement of section 245(i)(2)(A), so he was ineligible for section 245(i) adjustment.

The applicant, a Nicaraguan juvenile, was denied SIJ classification because the district director found no specific DHS consent to juvenile court jurisdiction and no continuing long-term foster care eligibility after age 18. The AAO held that constructive custody is determined by current ICE policy, so a released applicant without a final removal order needs no specific consent, and that a Florida juvenile court's retention of jurisdiction to age 22 with a finding that family reunification is not viable satisfies 8 C.F.R. § 204.11(c)(5).

The respondent's mother filed an I-130 petition for him in 1996, and it was approved before the August 6, 2002, effective date of the Child Status Protection Act (CSPA); he filed an adjustment application in 2003, and the Immigration Judge found he had aged out and lost 'child' status, making him ineligible to adjust. The BIA held that under INA section 201(f)(1) and CSPA section 8(1), a beneficiary whose visa petition was approved before the CSPA's effective date retains 'child' status if no final determination has been made on the application, and need not have filed the adjustment application before that date; it sustained the appeal and remanded.

O'Cealleagh, an Irish citizen, was convicted in Northern Ireland under a common purpose theory of aiding and abetting the murders of two British corporals; the Immigration Judge found the conviction was for a 'purely political offense' and therefore not a ground of inadmissibility. The Board of Immigration Appeals held that the offense was neither substantively political nor fabricated or trumped-up, so the 'purely political offense' exception to section 212(a)(2)(A)(i)(I) did not apply; it vacated the decision and remanded.

The respondent, a lawful permanent resident, had his 1997 drug-trafficking guilty plea conviction vacated under Ohio Revised Code section 2943.031 because the trial court failed to advise him of the possible immigration consequences of the plea. The Board of Immigration Appeals distinguished vacaturs based on defects in the underlying proceedings from those based on post-conviction events such as rehabilitation, recognized the vacatur for immigration purposes, held the conviction no longer valid, and remanded for consideration of his 2002 conviction.

The respondent, a Mexican native, was found ineligible for cancellation of removal based on a 1997 conviction for spousal injury (a crime involving moral turpitude) and a 1994 battery conviction not involving moral turpitude. The Board of Immigration Appeals held that the 1997 conviction fell within the petty offense exception of section 212(a)(2)(A)(ii)(II), so it did not bar cancellation under section 240A(b)(1)(C) or preclude good moral character under section 101(f)(3), and that the 'only one crime' proviso refers only to one crime involving moral turpitude.

The respondent obtained permanent resident status in 1985 through a knowingly bigamous marriage, and the Immigration Judge found he had never been 'lawfully admitted for permanent residence' and was therefore ineligible for cancellation of removal under INA section 240A(a). The BIA agreed, holding that an alien who acquires permanent resident status through fraud or misrepresentation is deemed never to have obtained that status ab initio, while remanding for consideration of other relief such as the section 237(a)(1)(H) waiver and section 240A(b) cancellation.

The Board of Immigration Appeals, sitting en banc, addressed the 'exceptional and extremely unusual hardship' standard for cancellation of removal under section 240A(b) of the Immigration and Nationality Act. It held that a divorced Mexican single mother supporting six children, four of them United States citizens, with no family remaining in Mexico, limited financial resources, children unfamiliar with Spanish, and no alternative means of immigrating, established that her United States citizen children would suffer exceptional and extremely unusual hardship, and it sustained her appeal and granted cancellation of removal.

The Board of Immigration Appeals withdrew from Matter of K-V-D- and held that whether a state drug offense is a 'drug trafficking crime' under 18 U.S.C. § 924(c)(2), and thus an aggravated felony under INA § 101(a)(43)(B), is determined by the interpretation of the relevant federal circuit court of appeals, applying the majority circuit approach where the circuit has not spoken. Applying that standard, the Board held the respondent's Illinois cocaine possession felonies were aggravated felonies, dismissed his appeal, and found him ineligible for cancellation of removal.

Jean, a Haitian refugee convicted of second-degree manslaughter, was granted an INA §209(c) waiver and adjustment of status by the BIA; the Attorney General reversed. The Attorney General held that aliens who commit violent or dangerous crimes will not receive a §209(c) waiver, adjustment, or asylum absent extraordinary circumstances such as national security or foreign policy concerns, or exceptional and extremely unusual hardship, and that family hardship must be balanced against the gravity of the offense.