Immigration precedents

A Mexican single mother sought cancellation of removal under section 240A(b), arguing that her two U.S. citizen children would suffer exceptional and extremely unusual hardship if removed to Mexico. The en banc Board held that poorer economic and educational conditions in Mexico, absence of family there, and her assets and job skills did not rise to hardship substantially beyond what is normally expected, sustained the Service's appeal, vacated the IJ's grant, and allowed voluntary departure.

A U.S. citizen father petitioned for his daughter born out of wedlock in El Salvador in 1966; the Service denied the petition for failure to establish legitimation or a qualifying parent-child relationship. The Board of Immigration Appeals held that El Salvador's 1983 constitutional reform eliminated all legal distinctions between children born in and out of wedlock, so a child born on or after December 16, 1965, and under 18 on December 16, 1983, qualifies as legitimated under section 101(b)(1)(C) of the Act; the director's decision was reversed and the petition approved.

The respondent resided in the United States as a lawful permanent resident with his U.S. citizen adoptive parents while under 18, but was over 18 when the Child Citizenship Act took effect on February 27, 2001, and had been found deportable for aggravated felony and moral turpitude convictions. The en banc Board held that the CCA's automatic citizenship provision in section 320 is not retroactive and requires all conditions, including being under 18, to be satisfied on or after the effective date, so the respondent was ineligible for automatic citizenship and his appeal was dismissed.

A Mexican national sought cancellation of removal under INA section 240A(b), arguing hardship to his U.S. citizen children and lawful permanent resident parents; the Immigration Judge and the Board both found the standard unmet. Sitting en banc, the Board held that 'exceptional and extremely unusual hardship' requires hardship to a qualifying relative substantially beyond that ordinarily expected from deportation, though not 'unconscionable,' and that only hardship to qualifying relatives counts, with the applicant's own circumstances relevant only as they affect that relative.

The respondent admitted repeating a fabricated story orally to an asylum officer during his asylum interview, and the Immigration Judge found him lacking good moral character, denying suspension of deportation and voluntary departure. The Board of Immigration Appeals, sitting en banc, held that under Ninth Circuit precedent an asylum officer is a 'tribunal' and that sworn false oral statements to an asylum officer can constitute 'false testimony' under section 101(f)(6) of the Act, but remanded because the record did not establish that an oath was administered.

The respondent obtained conditional permanent residence through marriage to a U.S. citizen; the Service terminated that status under section 216(b) before the 2-year anniversary and placed him in deportation proceedings, and he later filed a section 216(c)(4) waiver application. The Board of Immigration Appeals held that an alien whose conditional status was terminated before the 90-day petitioning period may still apply for a waiver, and that where the alien is prima facie eligible and seeks adjudication, proceedings should be continued so the Service may adjudicate the application rather than the Immigration Judge assuming jurisdiction through a 'constructive denial' theory.

The respondent, convicted of possessing a false identification document, was found inadmissible for fraud under INA section 212(a)(6)(C)(i) and sought a section 212(i) waiver along with adjustment of status. The en banc Board held that the IIRIRA section 349 extreme hardship requirement applies to pending cases, listed the factors relevant to extreme hardship, found the respondent failed to show extreme hardship to his U.S. citizen spouse beyond the ordinary consequences of deportation, and held that the underlying fraud may be weighed as an adverse discretionary factor.

The respondent, a Mexican citizen, pleaded guilty in 1993 to felony possession of more than 3 ounces of marijuana; an Idaho court withheld judgment and imposed probation, and later vacated the plea and dismissed the case under a state rehabilitative statute. The en banc Board held that under the statutory definition of 'conviction' in INA section 101(a)(48)(A), state rehabilitative expungement, dismissal, or vacatur has no effect in immigration proceedings, so the respondent remained convicted, and that Matter of Manrique was superseded by the statute.

The petitioner formed a corporation, deposited funds in its account, and signed a lease with an escape clause, but undertook no meaningful business activity and failed to show that he legally owned the invested capital or that it came from a lawful source; two Forms I-9 and a four-page business plan did not establish the creation of 10 full-time positions. The Associate Commissioner reversed the director's approval and denied the petition, holding that capital must be genuinely placed at risk, its lawful source documented, and job creation shown through a comprehensive, detailed, and credible business plan.

The petitioner sought EB-5 classification based on a $500,000 promissory note and partnership arrangement, but the funds were used for partnership expenses, held in reserves, tied to guaranteed annual returns, and subject to a redemption agreement, while the loans went largely to businesses outside the targeted employment area or regional center. The Associate Commissioner affirmed the denial, finding that the petitioner had not placed the full requisite capital at risk, had not documented lawful source of funds, had not established a new commercial enterprise, and had not met the job-creation requirement.

The petitioner bought a Howard Johnson motel in Florida for about $2.4 million and claimed that funds lent to his corporation and corporate bank loans constituted a qualifying investment. The Associate Commissioner held that loans to the enterprise, corporate loans secured by enterprise assets, and a personal guarantee are not 'capital' under 8 C.F.R. § 204.6(e), and that the petitioner failed to document lawful source of funds, establishment of a new commercial enterprise, and creation or maintenance of 10 full-time positions, so the petition was denied.

The Regional Service Center director denied a lawful permanent resident's visa petition for his son born in the Dominican Republic because the son's birth was registered 7 years after birth and the petitioner provided no other evidence of paternity. The Board of Immigration Appeals held that a delayed birth certificate is not necessarily conclusive evidence of paternity even if unrebutted, but must be evaluated in light of other record evidence and the circumstances, and dismissed the appeal for failure to meet the burden of proof.