Volume 22 Headnotes

Volume 22

(ID 3440)

Vasquez-Muniz, 22 I&N Dec. 1415 (BIA 2000), Overruled, 23 I&N Dec. 207 (BIA 2002)

Possession of a firearm by a felon in violation of section 12021(a)(1) of the California Penal Code is not an aggravated felony under section 101(a)(43)(E) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E) (1994), because it is not an offense “described in” 18 U.S.C. § 922(g)(1) (1994).

(1) Pursuant to Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), cert. denied sub nom. Reno v. Navas, 526 U.S. 1004 (1999), a respondent within the jurisdiction of the United States Court of Appeals for the Second Circuit whose deportation proceedings were pending on April 24, 1996, is not subject to the amendments made to section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (1994), by section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1277 (“AEDPA”), as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, § 306(d), 110 Stat. 3009-546, 3009-612.

(2) A respondent convicted of an aggravated felony for which he served more than 5 years in prison is barred from establishing eligibility for a section 212(c) waiver if the provisions of section 440(d) of the AEDPA are inapplicable to him.

The mandatory detention provisions of section 236(c) of the Immigration and Nationality Act, 8 U.S.C. § 1226(c) (Supp. IV 1998), do not apply to an alien who was convicted after the expiration of the Transition Period Custody Rules ("Transition Rules"), but who was last released from the physical custody of state authorities prior to the expiration of the Transition Rules and who was not physically confined or restrained as a result of that conviction.

(1) The respondent’s conviction for attempted possession of stolen property, in violation of sections 193.330 and 205.275 of the Nevada Revised Statutes, is a conviction for an attempted “theft offense (including receipt of stolen property),” and therefore an aggravated felony, within the meaning of sections 101(a)(43)(G) and (U) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G) and (U) (Supp. IV 1998).

(2) The Immigration and Naturalization Service retains prosecutorial discretion to decide whether or not to commence removal proceedings against a respondent subsequent to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.

A conviction that has been vacated pursuant to article 440 of the New York Criminal Procedure Law does not constitute a conviction for immigration purposes within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. IV 1998). Matter of Roldan, Interim Decision 3377 (BIA 1999), distinguished.

(1) An adjudication of youthful offender status pursuant to Article 720 of the New York Criminal Procedure Law, which corresponds to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5042 (1994 & Supp. II 1996), does not constitute a judgment of conviction for a crime within the meaning of section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. IV 1998).

(2) Under New York Law, the resentencing of a youthful offender following a violation of probation does not convert the youthful offender adjudication into a judgment of conviction.

(1) A taking of property constitutes a “theft offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act (“Act”), 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998), whenever there is criminal intent to deprive the owner of the rights and benefits of ownership, even if such deprivation is less than total or permanent.

A woman with liberal Muslim beliefs established by credible evidence that she suffered past persecution and has a well-founded fear of future persecution at the hands of her father on account of her religious beliefs, which differ from her father’s orthodox Muslim views concerning the proper role of women in Moroccan society.

The offense of burglary of a vehicle in violation of section 30.04(a) of the Texas Penal Code Annotated is not a “burglary offense” within the definition of an aggravated felony in section 101(a)(43)(G) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(G) (Supp. IV 1998).

An unrepresented alien who accepts an Immigration Judge’s decision as “final” does not effectively waive the right to appeal where the Immigration Judge failed to make clear that such acceptance constitutes an irrevocable waiver of appeal rights; therefore, the Board of Immigration Appeals has jurisdiction to consider the alien’s appeal.

An applicant for protection under Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must establish that the torture feared would be inflicted by or with the acquiescence of a public official or other person acting in an official capacity; therefore, protection does not extend to persons who fear entities that a government is unable to control.

(1) Voluntary departure may not be granted prior to the completion of removal proceedings without an express waiver of the right to appeal by the alien or the alien’s representative.

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d) (1) (Supp. II 1996), an offense must be one “referred to in section 212(a)(2)” of the Act, 8 U.S.C. § 1182(a)(2) (1994 & Supp. II 1996), to terminate the period of continuous residence or continuous physical presence required for cancellation of removal.

(2) A firearms offense that renders an alien removable under section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (Supp. II 1996), is not one “referred to in section 212(a)(2)” and thus does not stop the further accrual of continuous residence or continuous physical presence for purposes of establishing eligibility for cancellation of removal.

(1) The Board of Immigration Appeals has jurisdiction over an appeal from a district director’s custody determination that was made after the entry of deportation or removal pursuant to 8 C.F.R. § 236.1 (1999), regardless of whether the alien formally initiated the review.

(2) An alien subject to a final order of deportation based on a conviction for an aggravated felony, who is unable to be deported, may be eligible for release from detention after the expiration of the removal period pursuant to section 241(a)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1231(a)(6) (Supp. II 1996).

(3) Where an alien seeking review of a district director’s post-final-order custody determination failed to demonstrate by clear and convincing evidence that the release would not pose a danger to the community pursuant to 8 C.F.R. § 241.4(a) (1999), the district director’s decision to continue detention was sustained.

Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), an alien may not accrue the requisite 7 years of continuous physical presence for suspension of deportation after the service of the Order to Show Cause and Notice of Hearing (Form I-221), as service of the Order to Show Cause ends continuous physical presence.

(1) Where an alien has filed an untimely motion to reopen alleging that the Immigration and Naturalization Service failed to prove the alien’s removability, the burden of proof no longer lies with the Service to establish removability, but shifts to the alien to demonstrate that an exceptional situation exists that warrants reopening by the Board of Immigration Appeals on its own motion.

(2) Where an alien seeking to reopen removal proceedings failed to demonstrate a substantial likelihood that the result in his case would be changed if the proceedings were reopened, by showing that he was not, in fact, removable, he failed to present an exceptional situation to warrant a grant of his untimely motion.

(1) The phrase “ineligible to citizenship” in section 212(a)(8)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(8)(A) (Supp. II 1996), refers only to those aliens who are barred from naturalization by virtue of their evasion of military service.

(2) An alien convicted of an aggravated felony is not thereby rendered inadmissible under section 212(a)(8)(A) of the Act as an alien who is permanently “ineligible to citizenship.”

Under Arizona law, the offense of aggravated driving under the influence, which requires the driver to know that he or she is prohibited from driving under any circumstances, is a crime involving moral turpitude.

K-V-D-, 22 I&N Dec.1163 (BIA 1999), Overruled, Matter of Yanez, 23 I&N 390 (BIA 2002)

(1) Where a circuit court of appeals has interpreted the definition of an “aggravated felony” under section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) ( 1994), only for purposes of criminal sentence enhancement, the Board of Immigration Appeals may interpret the phrase differently for purposes of implementing the immigration laws in cases arising within that circuit.

(2) An alien convicted in Texas of simple possession of a controlled substance, which would be a felony under Texas law but a misdemeanor under federal law, is not convicted of an aggravated felony within the meaning of section 101(a)(43)(B) of the Act. Matter of L-G-, 20 I&N Dec. 89 (BIA 1995), affirmed.

There is no provision in the Immigration and Nationality Act for a widow or widower to file a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) on behalf of a child; however, under 8 C.F.R. § 204.2(b)(4) (1999), the child may be eligible for derivative classification as an immediate relative and may accompany or follow to join the principal alien (widow or widower) to the United States, if the principal alien includes the child in a visa petition filed pursuant to section 204(a)(1)(A)(ii) of the Act, 8 U.S.C. § 1154(a)(1)(A)(ii) (1994).

(1) The regulation at 8 C.F.R. § 3.23(b)(4)(iii) (1998) imposes no time or numerical limitation on aliens seeking to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(1988). Matter of Mancera, Interim Decision 3353 (BIA 1998), reaffirmed.

(2) When an alien seeks to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Act, it is appropriate to apply the “reasonable cause” standard, not the “exceptional circumstances” standard set forth in section 242B of the Act, 8 U.S.C. § 1252b (Supp. II 1990).

(3) An alien who asserted for the first time on appeal that her failure to appear at a deportation hearing was the result of ineffective assistance of counsel, but who failed to comply with the requirements for such a claim, has not shown “reasonable cause” that warrants reopening of the proceedings.

(1) The Immigration Judge and the Board of Immigration Appeals have jurisdiction over proceedings conducted pursuant to section 246 of the Immigration and Nationality Act, 8 U.S.C. § 1256 (Supp. II 1996), to rescind adjustment of status granted under section 210 of the Act, 8 U.S.C. § 1160 (1988 & Supp. II 1990).

(2) Information provided in an application to adjust an alien’s status to that of a lawful temporary resident under section 210 of the Act is confidential and prohibited from use in rescission proceedings under section 246 of the Act, or for any purpose other than to make a determination on an application for lawful temporary residence, to terminate such temporary residence, or to prosecute the alien for fraud during the time of application.

In order for a change in the law to qualify as an exceptional situation that merits the exercise of discretion by the Board of Immigration Appeals to reopen or reconsider a case sua sponte, the change must be fundamental in nature and not merely an incremental development in the state of the law.

(1) Section 236(c) of the Immigration and Nationality Act, 8 U.S.C.§ 1226(c) (Supp. II 1996), does not apply to aliens whose most recent release from custody by an authority other than the Immigration and Naturalization Service occurred prior to the expiration of the Transition Period Custody Rules.

(2) Custody determinations of aliens in removal proceedings who are not subject to the provisions of section 236(c) of the Act are governed by the general custody provisions at section 236(a) of the Act.

(3) By virtue of 8 C.F.R. § 236.1(c)(8) (1999), a criminal alien in a custody determination under section 236(a) of the Act must establish to the satisfaction of the Immigration Judge and the Board of Immigration Appeals that he or she does not present a danger to property or persons.

(4) When an Immigration Judge bases a bond determination on evidence presented in the underlying merits case, it is the responsibility of the parties and the Immigration Judge to ensure that the bond record establishes the nature and substance of the specific factual information considered by the Immigration Judge in reaching the bond determination.

(1) An alien whose June 8, 1987, conviction for second degree robbery was not, at the time of his conviction, included in the aggravated felony definition was not deportable, even after that offense was included in the aggravated felony definition as a crime of violence under the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, due to its provisions regarding effective dates; however, the alien became deportable upon enactment of section 321(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-628 (enacted Sept. 30, 1996) (“IIRIRA”), because that section established an aggravated felony definition that is to be applied without temporal limitations, regardless of the date of conviction.

(2) The term “actions taken” in section 321(c) of the IIRIRA, 110 Stat. at 3009-628, which limits the applicability of the aggravated felony definition of section 321(b), includes consideration of a case by the Board of Immigration Appeals; therefore that section’s aggravated felony definition is applicable to cases decided by the Board on or after the IIRIRA’s September 30, 1996, enactment date.

(3) The Attorney General’s decision in Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), remains binding on the Board, notwithstanding decisions in some courts of appeals that have rejected that decision.

(1) The general effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (AIIRIRA@), is April 1, 1997. Section 309(c)(5) of the IIRIRA, 110 Stat. at 3009-627, creates an exception to the general effective date with regard to suspension of deportation for aliens with pending deportation proceedings and establishes a transition rule to be applied in these pending cases.

(2) Under the provisions of the IIRIRA transition rule, service of the Order to Show Cause ends the period of continuous physical presence prior to the acquisition of the requisite 7 years.

(3) The respondent was served with an Order to Show Cause before the IIRIRA's enactment and deportation proceedings are still pending. Inasmuch as the Order to Show Cause was served prior to the respondent's acquisition of the 7 years' continuous physical presence, she is ineligible for suspension of deportation under the transition rule.

(4) The Attorney General vacates the decision of the Board of Immigration Appeals pending her further determination.

(5) The Attorney General remands the case to the Board for a determination of the respondent’s eligibility for adjustment of status under section 202 of the Nicaraguan Adjustment and Central American Relief Act, Pub. L. No. 105-100, tit.II, 111 Stat. 2193, 2193 (1997).

The Immigration Judge and the Board of Immigration Appeals have jurisdiction to adjudicate an alien’s request for a waiver of inadmissibility pursuant to section 209(c) of the Immigration and Nationality Act, 8 U.S.C. § 1159(c) (1994 & Supp. II 1996), following the initial denial of such a waiver by the Immigration and Naturalization Service.

A remand of the record for issuance of a full and separate decision apprising the parties of the legal basis of the Immigration Judge’s decision is not required under Matter of A-P-, Interim Decision 3375 (BIA 1999), where the respondent had notice of the factual and legal basis of the decision and had an adequate opportunity to contest them on appeal, the uncontested facts established at the hearing are dispositive of the issues raised on appeal, and the hearing was fundamentally fair.

A conviction for the crime of driving while intoxicated under section 49.04 of the Texas Penal Code, which is a felony as a result of an enhanced punishment, is a conviction for a crime of violence and therefore an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

The offense of indecency with a child by exposure pursuant to section 21.11(a)(2) of the Texas Penal Code Annotated constitutes sexual abuse of a minor and is therefore an aggravated felony within the meaning of section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (Supp. II 1996).

(1)A conviction for criminal contempt in the first degree, in violation of section 5.51(b)(i) of the New York Penal Law, with a sentence to imprisonment of at least 1 year, is a conviction for a crime of violence as defined under 18 U.S.C. § 16(b) (1994), thus rendering it an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

(2) A conviction for forgery in the second degree, in violation of section 170.10(2) of the New York Penal Law, with a sentence to imprisonment of at least 1 year, is a conviction for an aggravated felony under section 101(a)(43)(R) of the Act.

(3) Where an alien has been convicted of two or more aggravated felonies and has received concurrent sentences to imprisonment, the alien’s “aggregate term of imprisonment,” for purposes of determining eligibility for withholding of removal under section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3) (Supp. II 1996), is equal to the length of the alien’s longest concurrent sentence.

(1) An Immigration Judge’s order of deportation becomes a final administrative decision upon an alien’s waiver of the right to appeal.

(2) Where an alien files a motion to remand during the pendency of an appeal from an Immigration Judge’s denial of a motion to reopen a final administrative decision and more than 90 days have passed since entry of that final administrative decision, the Board of Immigration Appeals lacks jurisdiction to adjudicate the motion because it is time-barred by 8 C.F.R. § 3.2(c)(2) (1999).

(1) If the evidence in the record does not indicate that an alien has been convicted of an aggravated felony or charged with deportability under section 237(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(4) (Supp. II 1996), the Immigration Judge has the duty to provide the alien with information about the availability and requirements of voluntary departure under section 240B(a) of the Act, 8 U.S.C. § 1229c(a) (Supp. II 1996), and to provide the alien the opportunity to apply for this relief prior to taking the pleadings.

(2) An alien does not forfeit the right to apply for voluntary departure under section 240B(a) of the Act by appealing an erroneous denial of this relief.

Under the provisions of 8 C.F.R. § 217.4(a)(1) (1999), proceedings against an alien who has been refused admission under the Visa Waiver Pilot Program and who has applied for asylum must be commenced with a Notice of Referral to Immigration Judge (Form I-863).

Aliens seeking to reopen exclusion proceedings to apply for asylum and withholding of deportation who have presented evidence establishing materially changed circumstances in their homeland or place of last habitual residence, such that they meet the general requirements for motions to reopen, need not demonstrate a areasonable cause for their failure to appear at the prior exclusion hearing.

The offense of aggravated stalking pursuant to section 750.411i of the Michigan Compiled Laws Annotated is a crime involving moral turpitude.

(1) Pursuant to 8 C.F.R. § 3.2(c)(2) (1999), a motion to reopen must be filed no later than 90 days after the date of the final administrative decision of the Immigration Judge or the Board of Immigration Appeals.

(2) A motion to reopen a decision of the Board following judicial review is untimely if it is filed more than 90 days after the date of the Board’s decision, even if the motion is filed within 90 days of the order of the court.

(1) Where a victim of domestic violence fails to introduce meaningful evidence that her husband’s behavior was influenced by his perception of her opinion, she has not demonstrated harm on account of political opinion or imputed political opinion.

(2) The existence of shared descriptive characteristics is not necessarily sufficient to qualify those possessing the common characteristics as members of a “particular social group” for the purposes of the refugee definition at section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) (1994); rather, in construing the term in keeping with the other four statutory grounds, a number of factors are considered in deciding whether a grouping should be recognized as a basis for asylum, including how members of the grouping are perceived by the potential persecutor, by the asylum applicant, and by other members of the society.

(3) An applicant making a “particular social group” claim must make a showing from which it is reasonable to conclude that the persecutor was motivated to harm the applicant, at least in part, by the asserted group membership.

(4) An asylum applicant who claims persecution on the basis of a group defined as “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination” must demonstrate, inter alia, that her persecutor husband targeted and harmed her because he perceived her to be a member of this particular social group.

A conviction for misprision of a felony under 18 U.S.C. § 4 (1994) does not constitute a conviction for an aggravated felony under section 101(a)(43)(S) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(S) (Supp. II 1996), as an offense relating to obstruction of justice. Matter of Batista-Hernandez, Interim Decision 3321 (BIA 1997), distinguished.

For purposes of section 101(f)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1101(f)(6) (1994), false oral statements under oath to an asylum officer can constitute false testimony as defined by the United States Court of Appeals for the Ninth Circuit in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev’d on other grounds, 464 U.S. 183 (1984).

(1) In order to establish deportability under section 241(a)(4)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(C)(i) (1994), the Immigration and Naturalization Service has the burden of proving by clear, unequivocal, and convincing evidence that the Secretary of State has made a facially reasonable and bona fide determination that an alien’s presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.

(2) A letter from the Secretary of State conveying the Secretary’s determination that an alien’s presence in this country would have potentially serious adverse foreign policy consequences for the United States, and stating facially reasonable and bona fide reasons for that determination, is presumptive and sufficient evidence that the alien is deportable under section 241(a)(4)(C)(i) of the Act, and the Service is not required to present additional evidence of deportability.

(3) The Government is not required to permit an alien who is deemed to be deportable under section 241(a)(4)(C)(i) of the Act to depart the United States voluntarily prior to the initiation of deportation proceedings where the alien’s presence is pursuant to his voluntary decision to enter or seek admission to this country. Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988); Matter of Yam, 16 I&N Dec. 535 (BIA 1978); Matter of C-C-, 3 I&N Dec. 221 (BIA 1948), distinguished.

(4) Extradition proceedings are separate and apart from deportation proceedings and the Government’s success or failure in obtaining an order of extradition has no effect on deportation proceedings. Matter of McMullen, 17 I&N Dec. 542 (BIA 1980), rev’d on other grounds, 658 F.2d 1312 (9th Cir. 1981), on remand, Matter of McMullen, 19 I&N Dec. 90 (BIA 1984), aff’d, 788 F.2d 591 (9th Cir. 1986), followed.

(1) Effective April 1, 1997, an alien may apply for voluntary departure either in lieu of being subject to removal proceedings or before the conclusion of the proceedings under section 240B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a) (Supp. II 1990), or at the conclusion of the proceedings under section 240B(b) of the Act.

(2) An alien who applies for voluntary departure at the conclusion of removal proceedings pursuant to section 240B(b) of the Act must demonstrate, inter alia, both good moral character for a period of 5 years preceding the application for relief and the financial means to depart the United States, but an alien who applies before the conclusion of the proceedings pursuant to section 240B(a) is not subject to those requirements.

(3) Although an alien who applies for voluntary departure under either section 240B(a) or 240B(b) of the Act must establish that a favorable exercise of discretion is warranted upon consideration of the factors set forth in Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972), which governed applications for voluntary departure under the former section 244(e) of the Act, 8 U.S.C. § 1254(e) (1970), the Immigration Judge has broader authority to grant voluntary departure in discretion before the conclusion of removal proceedings under section 240B(a) than under section 240B(b) or the former section 244(e). Matter of Gamboa, supra, followed.

(4) An alien who had been granted voluntary departure five times pursuant to former section 244(e) of the Act and had returned each time without inspection was eligible to apply for voluntary departure in removal proceedings under section 240B, because the restrictions on eligibility of section 240B(c), relating to aliens who return after having previously been granted voluntary departure, only apply if relief was granted under section 240B.

(1) For purposes of determining the custody conditions of a lawful permanent resident under section 236 of the Immigration and Nationality Act, 8 U.S.C. § 1226 (Supp. II 1996), and 8 C.F.R. § 3.19(h)(2)(ii) (1999), a lawful permanent resident will not be considered “properly included” in a mandatory detention category when an Immigration Judge or the Board of Immigration Appeals finds, on the basis of the bond record as a whole, that it is substantially unlikely that the Immigration and Naturalization Service will prevail on a charge of removability specified in section 236(c)(1) of the Act.

(2) Although a conviction document may provide the Service with sufficient reason to believe that an alien is removable under one of the mandatory detention grounds for purposes of charging the alien and making an initial custody determination, neither the Immigration Judge nor the Board is bound by the Service’s decisions in that regard when determining whether an alien is properly included within one of the regulatory provisions that would deprive the Immigration Judge and the Board of jurisdiction to redetermine the custody conditions imposed on the alien by the Service. Matter of Joseph, Interim Decision 3387 (BIA 1999), clarified.

(3) When an Immigration Judge’s removal decision precedes the determination, pursuant to 8 C.F.R. § 3.19(h)(2)(ii), whether an alien is “properly included” in a mandatory detention category, the removal decision may properly form the basis for that determination.

(4) An automatic stay of an Immigration Judge’s release order that has been invoked by the Service pursuant to 8 C.F.R. § 3.19(i)(2) is extinguished by the Board’s decision in the Service’s bond appeal from that release order.

The Immigration and Naturalization Service met its burden of establishing a minor respondent’s deportability for entry without inspection by clear, unequivocal, and convincing evidence, where (1) a Record of Deportable Alien (Form I-213) was submitted, documenting the respondent’s identity and alienage; (2) the respondent, who failed without good cause to appear at his deportation hearing, made no challenge to the admissibility of the Form I-213; and (3) there were no grounds for a finding that the admission of the Form I-213 would be fundamentally unfair.

A carrier is subject to fine under section 273(a) of the Immigration and Nationality Act, 8 U.S.C. § 1323(a) (1994), when an alien passenger it has transported to the United States is paroled into the country but is not granted a waiver of documents under 8 C.F.R. § 212.1(g) (1995).

(1) Section 241(a)(4)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4)(A)(i) (1994), which provides for the deportability of any alien who after entry has engaged in “any activity to violate any law of the United States relating to espionage,” does not require evidence that the alien was either engaged in an act of espionage or was convicted of violating a law relating to espionage.

(2) An alien who has knowledge of, or has received instruction in, the espionage or counter-espionage service or tactics of a foreign government in violation of 50 U.S.C. § 851 (1994), is deportable under section 241(a)(4)(A)(i) of the Act.

Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), is not inconsistent with the motions to reopen regulations at 8 C.F.R. §§ 3.2(c)(2) and 3.23(b)(4)(i) (effective July 1, 1996). Matter of Arthur, supra, reaffirmed.

Immigration Judges have jurisdiction to grant a waiver of inadmissibility under section 213 of the Immigration and Nationality Act, 8 U.S.C. § 1183 (Supp. II 1996), and are required to advise an alien found to be inadmissible as a public charge under section 212(a)(4)(B) of the Act, 8 U.S.C. § 1182(a)(4)(B) (Supp. II 1996), of his or her right to apply for a waiver.

The Board of Immigration Appeals lacks jurisdiction to consider an appeal from an in absentia order in removal proceedings where section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(5)(C) (Supp. II 1996), provides that such an order may only be rescinded by filing a motion to reopen with the Immigration Judge. Matter of Gonzalez-Lopez, 20 I&N Dec. 644 (BIA 1993), followed.

An alien convicted of an offense described in section 275(a) of the Immigration and Nationality Act, 8 U.S.C. § 1325 (Supp. II 1996), is not convicted of an aggravated felony as that term is defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), which specifically refers to those offenses relating to alien smuggling described in sections 274(a)(1)(A) and (2) of the Act, 8 U.S.C. § 1324(a)(1)(A) and (2) (Supp. II 1996).

(1) Where the state statute under which an alien has been convicted is divisible, meaning it encompasses offenses that constitute crimes of violence as defined under 18 U.S.C. § 16 (1994) and offenses that do not, it is necessary to look to the record of conviction, and to other documents admissible as evidence in proving a criminal conviction, to determine whether the specific offense of which the alien was convicted constitutes an aggravated felony as defined in section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

(2) For purposes of determining whether an offense is a crime of violence as defined in 18 U.S.C. § 16(b), it is necessary to examine the criminal conduct required for conviction, rather than the consequence of the crime, to find if the offense, by its nature, involves “a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

(3) To find that a criminal offense is a crime of violence under 18 U.S.C. § 16(b), a causal link between the potential for harm and the “substantial risk” of “physical force” being used must be present. Matter of Magallanes, Interim Decision 3341 (BIA 1998), clarified.

(4) An alien convicted of criminally negligent child abuse under sections 18-6-401(1) and (7) of the Colorado Revised Statutes, whose negligence in leaving his stepson alone in a bathtub resulted in the child’s death, was not convicted of a crime of violence under 18 U.S.C. § 16(b) because there was not “substantial risk that physical force” would be used in the commission of the crime.

(1) Pursuant to section 240A(d)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(d)(1) (Supp. II 1996), continuous residence or physical presence for cancellation of removal purposes is deemed to end on the date that a qualifying offense has been committed.

(2) The period of continuous residence required for relief under section 240A(a) commences when the alien has been admitted in any status, which includes admission as a temporary resident.

(3) An offense described in section 240A(d)(1) is deemed to end continuous residence or physical presence for cancellation of removal purposes as of the date of its commission, even if the offense was committed prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546.

A carrier is subject to fine under section 273(a) of the Immigration and Nationality Act, 8 U.S.C. § 1323(a) (Supp. V 1993), for bringing an alien passenger without proper documents to the United States even though the alien passenger is a lawful permanent resident who was subsequently granted a waiver under 8 C.F.R. § 211.1(b)(3) (1994).

(1) Pursuant to 8 C.F.R. § 3.19(i)(2) (1999), published as a final rule in 63 Fed. Reg. 27,441, 27,448-49 (1998), the Immigration and Naturalization Service’s filing of a Form EOIR-43 (Notice of INS Intent to Appeal Custody Redetermination) provides an automatic stay of an Immigration Judge’s order releasing an alien who is charged with removal under one of the mandatory detention grounds set forth in section 236(c)(1) of the Act, 8 U.S.C. § 1226(c)(1) (Supp. II 1996), even where the Immigration Judge has determined that the alien is not subject to section 236(c)(1) and has terminated the removal proceedings on that charge.

(2) The filing of an appeal from an Immigration Judge’s merits decision terminating removal proceedings does not operate to stay an Immigration Judge’s release order in related bond proceedings. Matter of Valles, Interim Decision 3306 (BIA 1997), modified.

(1) Under Section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B)(ii) (Supp. II 1996), a determination whether an alien convicted of an aggravated felony and sentenced to less than 5 years’ imprisonment has been convicted of a “particularly serious crime,” thus barring the alien from withholding of removal, requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. Matter of S-S-, Interim Decision 3374 (BIA 1999); and Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), followed.

(2) An alien who was convicted of bringing an illegal alien into the United States in violation of section 274(a)(2)(B)(iii) of the Act, 8 U.S.C. § 1324(a)(2)(B)(iii) (1994 & Supp. II 1996), and sentenced to 3½ months’ imprisonment has, upon consideration of the nature of the conviction and the sentence imposed, as well as the underlying facts and circumstances of the conviction, not been convicted of a “particularly serious crime” and is eligible to apply for withholding of removal under section 241(b)(3)(B)(ii) of the Act.

For purposes of determining eligibility for suspension of deportation, the period of continuous physical presence ends at the issuance of the Order to Show Cause and Notice of Hearing (Form I-221), irrespective of the date that it was issued.

An alien whose conviction for an aggravated felony was subsequent to her adjustment of status to that of a lawful permanent resident is deportable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien who was convicted of an aggravated felony “after admission.”

(1) An alien whose conditional permanent residence was terminated by the Immigration and Naturalization Service under section 216(b) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(b) (1994), before the 90-day petitioning period preceding the second anniversary of the grant of status, may file an application for a waiver under section 216(c)(4) of the Act, 8 U.S.C. § 1186a(c)(4).

(2) Where an alien is prima facie eligible for a waiver under section 216(c)(4) of the Act and wishes to have the Service adjudicate an application for such waiver, proceedings should be continued in order to allow the Service to adjudicate the application. Matter of Mendes, 20 I&N Dec. 833 (BIA 1994).

An alien convicted of causing a financial institution to fail to file currency transaction reports and of structuring currency transactions to evade reporting requirements, in violation of 31 U.S.C. §§ 5324(1) and (3) (1998), whose offense did not include any morally reprehensible conduct, is not convicted of a crime involving moral turpitude. Matter of Goldeshtein, 20 I&N Dec. 382 (BIA 1991), rev’d, 8 F.3d 645 (9th Cir. 1993), overruled.

The regulatory language at 8 C.F.R. § 3.23(b)(4)(iii)(B) (1998) contains no time or numerical limitations on aliens who wish to file a motion to reopen exclusion proceedings conducted in absentia.

*(1) The recently amended provisions of section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(i) (Supp. II 1996), which require that an alien establish extreme hard-ship to his or her United States citizen or permanent resident alien spouse or parent in order to qualify for a waiver of inadmissibility, are applicable to pending cases. Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; A.G. 1997), followed.

(2) The factors to be used in determining whether an alien has established extreme hardship pursuant to section 212(i) of the Act include, but are not limited to, the following: the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

(3) The underlying fraud or misrepresentation for which an alien seeks a waiver of inadmissibility under section 212(i) of the Act may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion. Matter of Tijam, Interim Decision 3372 (BIA 1998), followed.

An alien who was convicted of submitting a false claim with intent to defraud arising from an unsuccessful scheme to obtain $15,000 from an insurance company was convicted of an “attempt” to commit a fraud in which the loss to the victim exceeded $10,000 within the meaning of section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (Supp. II 1996), and therefore is deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony.

(1) Although the paternity of a beneficiary must be established in order to qualify as a “legitimated” child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C) (1994), the child’s father need not prove that they have any relationship other than a purely biological one.

(2) As blood tests are the sole manner of proving a claimed biological relationship expressly mentioned in the federal regulations that do not require any previous personal relationship between a father and his child, when primary evidence of paternity in the form of a birth certificate is unavailable or insufficient, the Immigration and Naturalization Service should, in its request for additional evidence, advise a petitioner of the alternative of submitting the results of blood tests if affidavits and historical secondary evidence are not available.

(1) Under the statutory definition of “conviction” provided at section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996), no effect is to be given in immigration proceedings to a state action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute.

(2) With the enactment of the federal statute defining “conviction” with respect to an alien, our decisions in Matter of G-, 9 I&N Dec. 159 (BIA 1960, A.G. 1961); Matter of Ibarra-Obando, 12 I&N Dec. 576 (BIA 1966, A.G. 1967); Matter of Luviano, Interim Decision 3267 (BIA 1996), and others which address the impact of state rehabilitative actions on whether an alien is “convicted” for immigration purposes are no longer controlling.

(3) Once an alien is subject to a “conviction” as that term is defined at section 101(a)(48)(A) of the Act, the alien remains convicted for immigration purposes notwithstanding a subsequent state action purporting to erase the original determination of guilt through a rehabilitative procedure.

(4) The policy exception in Matter of Manrique, Interim Decision 3250 (BIA 1995), which accorded federal first offender treatment to certain drug offenders who had received state rehabilitative treatment is superseded by the enactment of section 101(a)(48)(A), which gives no effect to state rehabilitative actions in immigration proceedings. Matter of Manrique, supra, superseded.

(5) An alien, who has had his guilty plea to the offense of possession of a controlled substance vacated and his case dismissed upon termination of his probation pursuant to section 19-2604(1) of the Idaho Code, is considered to have a conviction for immigration purposes.

An alien who is convicted of transporting an illegal alien within the United States in violation of section 274(a)(1)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1324(a)(1)(A)(ii) (1994), was convicted of an aggravated felony as defined in section 101(a)(43)(N) of the Act, 8 U.S.C. § 1101(a)(43)(N) (Supp. II 1996), and is therefore deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii) (1994), as an alien convicted of an aggravated felony. Matter of I-M-, 7 I&N Dec. 389 (BIA 1957), distinguished.

(1) A summary decision pursuant to 8 C.F.R. § 240.12(b) (1998) may properly be issued by an Immigration Judge in removal proceedings in lieu of an oral or written decision only when the respondent has expressly admitted to both the factual allegations and the charges of removability; and, either the respondent’s ineligibility for any form of relief is clearly established on the pleadings; or, after appropriate advisement of and opportunity to apply for any form of relief for which it appears from the pleadings that he or she may be eligible, the respondent chooses not to apply for relief or applies only for, and is granted, the relief of voluntary departure.

(2) A summary decision should adequately link the respondent’s admissions to the factual allegations and the charges of removability to the applicable law.

(3) When an Immigration Judge issues an oral decision, the transcribed oral decision shall be included in the record in a manner that clearly separates it from the remainder of the transcript.

(1) Under section 241(b)(3)(B)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1251(b)(3)(B)(ii) (Supp. II 1996), a determination of whether an alien convicted of an aggravated felony and sentenced to less than 5 years’ imprisonment has been convicted of a “particularly serious crime,” thus barring the alien from withholding of removal, requires an individual examination of the nature of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), followed.

(2) Under section 241(b)(3)(B) of the Act, a determination of whether an aggravated felony conviction constitutes a “particularly serious crime” per se is based on the length of sentence imposed, rather than on the category or type of aggravated felony conviction that resulted in the conviction. Matter of Gonzalez, 19 I&N Dec. 692 (BIA 1988), explained and distinguished.

(3) Under section 241(b)(3)(B) of the Act, there no longer exists a rebuttable presumption that an alien convicted of an aggravated felony for which a sentence of less than 5 years was imposed has been convicted of a “particularly serious crime” rendering the alien ineligible for withholding of removal. Matter of Q-T-M-T-, Interim Decision 3300 (BIA 1996) (regarding withholding of deportation), distinguished.

(4) An alien who was convicted of first degree robbery of an occupied home while armed with a handgun and sentenced to 55 months’ imprisonment has been convicted of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996), and, upon consideration of the nature of the conviction and the sentence imposed, as well as the underlying facts and circumstances of the conviction, has been convicted of a “particularly serious crime” rendering the alien ineligible for withholding of removal under section 241(b)(3)(B)(ii) of the Act.

An alien who was convicted of arson in the first degree under the law of Alaska and sentenced to 7 years’ imprisonment with 3 years suspended was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996), and therefore is deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony.

(1) In making the discretionary determination on a waiver of deportability pursuant to section 241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(H) (1994), an Immigration Judge should consider the alien’s initial fraud or misrepresentation in the overall assessment of positive and negative factors.

(2) The Board of Immigration Appeals declines to follow the policy set forth by the Commissioner of the Immigration and Naturalization Service in Matter of Alonzo, 17 I&N Dec. 292 (Comm’r 1979), that the underlying fraud or misrepresentation for which the alien seeks a waiver should be disregarded.

(1) A discretionary waiver under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (Supp. II 1996), is not available to an alien who has been convicted of an aggravated felony, or to an alien who has not lawfully resided continuously in the United States for the statutorily required period of 7 years, where the alien has previously been lawfully admitted for permanent residence but subsequently has been found to have been excludable at entry or inadmissible on the date admitted.

(2) Matter of Michel, Interim Decision 3335 (BIA 1998), is not applicable to an alien who has previously been lawfully admitted for permanent residence to the United States but later claims that such admission was not lawful because he concealed from the Immigration and Naturalization Service criminal activities that, if known, would have precluded his admission, so the Immigration Judge correctly found that the respondent was statutorily ineligible for a waiver of inadmissibility under section 212(h) of the Act. Matter of Michel, supra, distinguished.

An alien convicted of an aggravated felony is subject to deportation regardless of the date of the conviction when the alien is placed in deportation proceedings on or after March 1, 1991, and the crime falls within the aggravated felony definition.

(1) Where an alien who did not receive oral warnings of the consequences of failing to appear at a deportation hearing pursuant to section 242B(a) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(a) (1994), moves to reopen deportation proceedings held in absentia under section 242B(c) of the Act in order to apply for a form of relief that was unavailable at the time of the hearing, the rescission requirements prescribed by section 242B(c)(3) of the Act are not applicable. Instead, the motion to reopen is subject to the regulatory requirements set forth at 8 C.F.R. §§ 3.2(c) and 3.23(b)(3) (1998).

(2) Where deportation proceedings held in absentia are reopened to allow for an application for new relief, the Immigration Judge must determine in each individual case the weight to be accorded to the alien’s explanation for failing to appear at the hearing and whether such explanation is a favorable or adverse factor with respect to the ultimate discretionary determination.

(1) Under 8 C.F.R. § 208.13(b)(1)(i) (1998), where an asylum applicant has shown that he has been persecuted in the past on account of a statutorily-protected ground, and the record reflects that country conditions have changed to such an extent that the asylum applicant no longer has a well-founded fear of persecution from his original persecutors, the applicant bears the burden of demonstrating that he has a well-founded fear of persecution from any new source.

(2) An asylum applicant who no longer has a well-founded fear of persecution due to changed country conditions may still be eligible for a discretionary grant of asylum under 8 C.F.R. § 208.13(b)(1)(ii) only if he establishes, as a threshold matter, compelling reasons for being unwilling to return to his country of nationality or last habitual residence arising out of the severity of the past persecution.

(3) The applicant failed to establish compelling reasons arising out of the severity of the past persecution for being unwilling to return to Afghanistan where he suffered beatings during a month-long detention and the disappearance and likely death of his father.

Where counsel’s insistence on corroborating evidence discouraged the respondents from seeking asylum, but was reasonable in light of case precedent, there is no showing of ineffective assistance of counsel.

(1) A decision by the Immigration and Naturalization Service to institute removal or other proceedings, or to cancel a Notice to Appear or other charging document before jurisdiction vests with the Immigration Judge, involves the exercise of prosecutorial discretion and is not a decision that the Immigration Judge or this Board may review.

(2) Once the charging document is filed with the Immigration Court and jurisdiction is vested in the Immigration Judge, the Service may move to terminate the proceedings, but it may not simply cancel the charging document. The Immigration Judge is not required to terminate proceedings upon the Service’s invocation of prosecutorial discretion but rather must adjudicate the motion on the merits according to the regulations at 8 C.F.R. § 239.2 (1998).

(3) The Immigration Judge and the Board of Immigration Appeals lack jurisdiction to review a decision of the Immigration and Naturalization Service to reinstate a prior order of removal pursuant to section 241(a)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(5) (Supp. II 1996).

The Board of Immigration Appeals lacks jurisdiction to adjudicate a claim for relief from deportation pursuant to Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as there has been no specific legislation to implement the provisions of Article 3, no regulations have been promulgated with respect to Article 3, and the United States Senate has declared that Article 3 is a non-self-executing treaty provision.

(1) The third prong of the standard for determining whether a conviction exists with regard to deferred adjudications has been eliminated pursuant to section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (Supp. II 1996). Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988), superseded.

(2) A deferred adjudication under article 42.12, § 5 of the Texas Code of Criminal Procedure is a conviction for immigration purposes.

(1) An alien seeking immigrant classification as an alien of exceptional ability or as a member of the professions holding an advanced degree cannot meet the threshold for a national interest waiver of the job offer requirement simply by establishing a certain level of training or education which could be articulated on an application for a labor certification.

(2) General arguments regarding the importance of a given field of endeavor, or the urgency of an issue facing the United States, cannot by themselves establish that an individual alien benefits the national interest by virtue of engaging in the field or seeking an as yet undiscovered solution to the problematic issue.

(3) A shortage of qualified workers in a given field, regardless of the nature of the occupation, does not constitute grounds for a national interest waiver. Given that the labor certification process was designed to address the issue of worker shortages, a shortage of qualified workers is an argument for obtaining rather than waiving a labor certification.

(1) Merely establishing and capitalizing a new commercial enterprise and signing a commercial lease are not sufficient to show that an immigrant-investor petitioner has placed his capital at risk. The petitioner must present, instead, evidence that he has actually undertaken meaningful concrete business activity.

(2) The petitioner must establish that he has placed his own capital at risk, that is to say, he must show that he was the legal owner of the invested capital. Bank statements and other financial documents do not meet this requirement if the documents show someone else as the legal owner of the capital.

(3) The petitioner must also establish that he acquired the legal ownership of the invested capital through lawful means. Mere assertions about the petitioner's financial situation or work history, without supporting documentary evidence, are not sufficient to meet this requirement.

(4) To establish that qualifying employment positions have been created, INS Forms I-9 presented by a petitioner must be accompanied by other evidence to show that these employees have commenced work activities and have been hired in permanent, full-time positions.

(5) In order to demonstrate that the new commercial enterprise will create not fewer than 10 full-time positions, the petitioner must either provide evidence that the new commercial enterprise has created such positions or furnish a comprehensive, detailed, and credible business plan demonstrating the need for the positions and the schedule for hiring the employees.

(1) A promissory note secured by assets owned by a petitioner can constitute capital under 8 C.F.R. § 204.6(e) if: the assets are specifically identified as securing the note; the security interests in the note are perfected in the jurisdiction in which the assets are located; and the assets are fully amenable to seizure by a U.S. note holder.

(2) When determining the fair market value of a promissory note being used as capital under 8 C.F.R. § 204.6(e), factors such as the fair market value of the assets securing the note, the extent to which the assets are amenable to seizure, and the present value of the note should be considered.

(3) Whether a petitioner uses a promissory note as capital under 8 C.F.R. § 204.6(e) or as evidence of a commitment to invest cash, he must show that he has placed his assets at risk. In establishing that a sufficient amount of his assets are at risk, a petitioner must demonstrate, among other things, that the assets securing the note are his, that the security interests are perfected, that the assets are amenable to seizure, and that the assets have an adequate fair market value.

(4) A petitioner engaging in the reorganization or restructuring of a pre-existing business may not cause a net loss of employment.

(1) Regardless of its location, a new commercial enterprise that is engaged directly or indirectly in lending money to job-creating businesses may only lend money to businesses located within targeted areas in order for a petitioner to be eligible for the reduced minimum capital requirement.

(2) Under the Immigrant Investor Pilot Program, if a new commercial enterprise is engaged directly or indirectly in lending money to job-creating businesses, such job-creating businesses must all be located within the geographic limits of the regional center. The location of the new commercial enterprise is not controlling.

(3) A petitioner may not make material changes to his petition in an effort to make a deficient petition conform to Service requirements.

(4) If the new commercial enterprise is a holding company, the full requisite amount of capital must be made available to the business(es) most closely responsible for creating the employment on which the petition is based.

(5) An alien may not receive guaranteed payments from a new commercial enterprise while he owes money to the new commercial enterprise.

(6) An alien may not enter into a redemption agreement with the new commercial enterprise at any time prior to completing all of his cash payments under a promissory note. In no event may the alien enter into a redemption agreement prior to the end of the two-year period of conditional residence.

(7) A redemption agreement between an alien investor and the new commercial enterprise constitutes a debt arrangement and is prohibited under 8 C.F.R. § 204.6(e).

(8) Reserve funds that are not made available for purposes of job creation cannot be considered capital placed at risk for the purpose of generating a return on the capital being placed at risk.

(9) The Service does not pre-adjudicate immigrant-investor petitions; each petition must be adjudicated on its own merits.

(10) Under 8 C.F.R. § 204.6(e), all capital must be valued at fair market value in United States dollars, including promissory notes used as capital. In determining the fair market value of a promissory note, it is necessary to consider, among other things, present value.

(11) Under certain circumstances, a promissory note that does not itself constitute capital may constitute evidence that the alien is "in the process of investing" other capital, such as cash. In such a case, the petitioner must substantially complete payments on the promissory note prior to the end of the two-year conditional period.

(12) Whether the promissory note constitutes capital or is simply evidence that the alien is in the process of investing other capital, nearly all of the money due under the promissory note must be payable within two years, without provisions for extensions.

(13) In order for a petitioner to be considered to have established an original business, he must have had a hand in its actual creation.

(1) A petitioner under § 203(b)(5) of the Immigration and Nationality Act cannot establish the requisite investment of capital if he lends the money to his new commercial enterprise.

(2) Loans obtained by a corporation, secured by assets of the corporation, do not constitute capital invested by a petitioner. Not only is such a loan prohibited by 8 C.F.R. § 204.6(e), but the petitioner and the corporation are not the same legal entity.

(3) A petitioner's personal guarantee on a business's debt does not transform the business's debt into the petitioner's personal debt.

(4) A petitioner must present clear documentary evidence of the source of the funds that he invests. He must show that the funds are his own and that they were obtained through lawful means.

(5) A petitioner who acquires a pre-existing business must show that the investment has created, or at least has a reasonable prospect of creating, 10 full-time positions, in addition to those existing before acquisition. The petitioner must, therefore, present evidence concerning the pre-acquisition level of employment. Simply maintaining the pre-acquisition level of employment is not sufficient, unless the petitioner shows that the pre-existing business qualifies as a "troubled business."

In order to commence proceedings against an alien for purposes of sections 204(g) and 245(e)(2) of the Immigration and Nationality Act, 8 U.S.C. §§ 1154(g) and 1255(e)(2) (1994), an Order to Show Cause and Notice of Hearing (Form I-221) that was issued on or after June 20, 1991, must be filed with the Immigration Court. Matter of Fuentes, 20 I&N Dec. 227 (BIA 1991), superseded.

A claim of ineffective assistance of counsel does not constitute an exception to the 180-day statutory limit for the filing of a motion to reopen to rescind an in absentia order of deportation under section 242B(c)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(3)(A) (1994), on the basis of exceptional circumstances.

In cases falling within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, exclusion proceedings are appropriate for aliens returning to the United States under a grant of advance parole, with two exceptions. Those exceptions are aliens with pending registry applications and those not specifically informed by the Immigration and Naturalization Service that they risk being placed in exclusion proceedings upon reentry. Matter of Torres, 19 I&N Dec. 371 (BIA 1986), modified.

An applicant for asylum who departed the United States after having been granted an advance authorization for parole, and who, on his return, was paroled into this country under the provisions of section 212(d)(5) of the Immigration and Nationality Act, 8 U.S.C. § 1182(d)(5) (Supp. V 1993), was properly placed in exclusion proceedings following the Immigration and Naturalization Service’s denial of his application for asylum and revocation of his parole. Navarro-Aispura v. INS, 53 F.3d 233 (9th Cir. 1995); and Barney v. Rogers, 83 F.3d 318 (9th Cir. 1996), distinguished.

A motion to reopen deportation proceedings conducted in absentia pursuant to section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(1994), that demonstrates a lack of notice of the scheduled hearing is excepted from the regulatory time limitations on motions.

Due to a fundamental change in the definition of a “refugee” brought about by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, the Board of Immigration Appeals will allow reopening of proceedings to pursue asylum claims based on coerced population control policies, notwithstanding the time and number limitations on motions specified in 8 C.F.R. § 3.2 (1997).

In considering the opinion of the United States Court of Appeals for the Ninth Circuit in Young v. Reno, 114 F.3d 879 (9th Cir. 1997), the Board of Immigration Appeals reaffirms its holding in Matter of Li, 20 I&N Dec. 700 (BIA 1993), that a petitioner who qualifies as an adopted child under section 101(b)(1)(e) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(e) (1994), cannot confer immigration benefits on a natural sibling.

An alien failed to establish that a foot injury he suffered on the day before his deportation hearing amounted to exceptional circumstances to excuse his failure to appear within the meaning of section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(f)(2)(1994), where he gave no explanation for neglecting to contact the Immigration Court before the hearing and did not support his claim with medical records or other evidence, such as an affidavit from his employer.

An alien who claimed that his failure to appear at his deportation hearing resulted from an “illegible hearing date” on the Order to Show Cause and Notice of Hearing (Form I-221) failed to establish by sufficient evidence that he received inadequate notice of the hearing under section 242B(c)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(c)(3)(B)(1994), or that his absence was the result of exceptional circumstances under section 242B(c)(3)(A) of the Act.

An alien failed to establish that a serious headache he suffered on the day of his deportation hearing amounted to exceptional circumstances to excuse his failure to appear within the meaning of section 242B(f)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1252b(f)(2)(1994), where he gave no explanation for neglecting to contact the Immigration Court on the day of the hearing and did not support his claim with medical records or other evidence, such as affidavits by persons with knowledge regarding the extent and seriousness of the alien’s headache and the remedies he used to treat it.

In order to qualify as a “legitimated” child under section 101(b)(1)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(C)(1994), a child residing or domiciled in Peru must have been under the age of 18 at the time the changes in Peruvian law regarding legitimation took effect, and “extramarital filiation” must have been established prior to the child’s 18th birthday, unless he or she was legitimated under the former laws of that country. Matter of Quispe, 16 I&N Dec. 174 (BIA 1977); and Matter of Breninzon, 19 I&N Dec. 40 (BIA 1984), modified.

An alien who suffered repeated beatings and received multiple handwritten anti-Semitic threats, whose apartment was vandalized by anti-Semitic nationalists, and whose son was subjected to degradation and intimidation on account of his Jewish nationality established that he has suffered harm which, in the aggregate, rises to the level of persecution as contemplated by the Immigration and Nationality Act.

Precedent decisions of the Board of Immigration Appeals which have been certified to the Attorney General for review are binding on the Immigration and Naturalization Service and the Immigration Judges and continue to serve as precedent in all proceedings involving the same issue or issues unless or until they are modified or overruled by the Board or the Attorney General.

(1) An alien who arrives in the United States pursuant to a grant of advance parole is an “arriving alien,” as that term is defined in the federal regulations. (2) According to the regulations, an Immigration Judge has no authority over the apprehension, custody, and detention of arriving aliens and is therefore without authority to consider the bond request of an alien returning pursuant to a grant of advance parole.

Where the Board of Immigration Appeals dismisses an appeal as untimely, without adjudication on the merits, the Board retains jurisdiction over a motion to reconsider its dismissal of the untimely appeal to the extent that the motion challenges the finding of untimeliness or requests consideration of the reasons for untimeliness. Matter of Mladineo, 14 I&N Dec. 591 (BIA 1974), modified.

(1) To be statutorily eligible for cancellation of removal under section 240A(a) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1229b(a)), an alien must demonstrate that he or she has been lawfully admitted for permanent residence for not less than 5 years, has resided in the United States continuously for 7 years after having been admitted in any status, and has not been convicted of an aggravated felony.

(2) In addition to satisfying the three statutory eligibility requirements, an applicant for relief under section 240A(a) of the Act must establish that he or she warrants such relief as a matter of discretion.

(3) The general standards developed in Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978), for the exercise of discretion under section 212(c) of the Act, 8 U.S.C. § 1182(c)(1994), which was the predecessor provision to section 240A(a), are applicable to the exercise of discretion under section 240A(a).

An alien who was convicted of aggravated driving while under the influence and sentenced to 2½ years in prison was convicted of a “crime of violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(43)(F)), and therefore is deportable under section 241(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1251(a)(2)(A)(iii)(1994), as an alien convicted of an aggravated felony.