Volume 28

(1) Expert testimony is evidence, but only an Immigration Judge makes factual findings. 

(2)  When the Immigration Judge makes a factual finding that is not consistent with an expert’s opinion, it is important, as the Immigration Judge did here, to explain the reasons behind the factual findings.

(1) Counsel’s acceptance of responsibility for error does not discharge the disciplinary authority complaint obligation under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), particularly where the ineffective assistance allegation is rendered by the same attorney against himself.

(2) A respondent seeking reopening on the basis of a claim of ineffective assistance of counsel must show a reasonable probability that, but for counsel’s error, he would have prevailed on his claim.

(1) Where the temporary protected status (“TPS”) of an alien who was previously present in the United States without being admitted or paroled is terminated, the alien remains inadmissible under section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8‍ U.S.C. §‍ 1182(a)(6)(A)(i) (2018), and removal proceedings should not be terminated.

(2) An alien whose TPS continues to be valid is considered to be “admitted” for purposes of establishing eligibility for adjustment of status only within the jurisdictions of the United States Courts of Appeals for the Sixth, Eighth, and Ninth Circuits.

Absent a showing of prejudice on account of ineffective assistance of counsel, or a showing that clearly undermines the validity and finality of the finding, it is inappropriate for the Board to favorably exercise our discretion to reopen a case and vacate an Immigration Judge’s frivolousness finding.

(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress.

(2) The Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.

Where there is substantial and probative evidence that a beneficiary’s prior marriage was fraudulent and entered into for the purpose of evading the immigration laws, a subsequent visa petition filed on the beneficiary’s behalf is properly denied pursuant to section 204(c) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c) (2018), even if the first visa petition was denied because of insufficient evidence of a bona fide marital relationship.

If a criminal conviction was charged as a ground of removability or was known to the Immigration Judge at the time cancellation of removal was granted under section 240A(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2018), that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings.

(1) In assessing whether to admit the testimony of a witness as an expert, an Immigration Judge should consider whether it is sufficiently relevant and reliable for the expert to offer an informed opinion, and if it is admitted, the Immigration Judge should then consider how much weight the testimony should receive.

(2) In considering how much weight to give an expert’s testimony, the Immigration Judge should assess how probative and persuasive the testimony is regarding key issues in dispute for which the testimony is being offered.

(1) In conducting its review of an alien’s asylum claim, the Board of Immigration Appeals (“Board”) must examine de novo whether the facts found by the immigration judge satisfy all of the statutory elements of asylum as a matter of law. See Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020).

(2) When reviewing a grant of asylum, the Board should not accept the parties’ stipulations to, or failures to address, any of the particular elements of asylum—including, where necessary, the elements of a particular social group. Instead, unless it affirms without opinion under 8 C.F.R. § 1003.1(e)(4)(i), the Board should meaningfully review each element of an asylum claim before affirming such a grant, or before independently ordering a grant of asylum. See Matter of L-E-A-, 27 I&N Dec. 581, 589 (A.G. 2019).

(3) Even if an applicant is a member of a cognizable particular social group and has suffered persecution, an asylum claim should be denied if the harm inflicted or threatened by the persecutor is not “on account of” the alien’s membership in that group.  That requirement is especially important to scrutinize where the asserted particular social group encompasses many millions of persons in a particular society.  (4) An alien’s membership in a particular social group cannot be “incidental, tangential, or subordinate to the persecutor’s motivation . . . [for] why the persecutor[] sought to inflict harm.” Matter of A-B-, 27 I&N Dec. 316, 338 (A.G. 2018) (citations omitted).  Accordingly, persecution that results from personal animus or retribution generally does not support eligibility for asylum.

(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.

(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.

(1) Where an alien who has been personally served with a notice to appear advising him of the requirement to notify the Immigration Court of his correct address fails to do so and is ordered removed in absentia for failure to appear for the scheduled hearing, reopening of the proceedings to rescind his order of removal based on a lack of proper notice is not warranted under section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(ii) (2018).

(2) The respondent’s failure to update his address for over 18 years indicates a lack of due diligence and may properly be found to undermine the veracity of his claim that he has taken actions to maintain his rights in the underlying removal proceedings.

(1) If all of the means of committing a crime, based on the elements of the statute of conviction, amount to one or more of the offenses listed in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been convicted of that crime has necessarily been convicted of an aggravated felony for purposes of the INA.

(2) The respondent’s conviction for grand larceny in the second degree under New York Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for purposes of the INA. DHS charged that the respondent had been convicted of either aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G) and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost property constitutes aggravated-felony theft, and the parties do not dispute that the other means of violating the New York statute correspond to either aggravated-felony theft or aggravated-felony fraud. 

Section 13-3407 of the Arizona Revised Statutes, which criminalizes possession of a dangerous drug, is divisible with regard to the specific “dangerous drug” involved in a violation of that statute.

(1) Under Department of Justice regulations implementing the Convention Against Torture, an act constitutes "torture" only if it is inflicted or approved by a public official or other person "acting in an official capacity." 8 C.F.R. § 1208.18(a)(1). This official capacity requirement limits the scope of the Convention to actions performed "under color of law." Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002). Nothing in Matter of Y-L-, or any other Board precedent, should be construed to endorse a distinct, "rogue official" standard.

(2) The "under color of law" standard draws no categorical distinction between the acts of low- and high-level officials. A public official, regardless of rank, acts "under color of law" when he "exercise[s] power ‘possessed by virtue of . . . law and made possible only because [he was] clothed with the authority of . . . law.’" West v. Atkins, 487 U.S. 42, 47 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).

Under section 235(b)(2)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(2)(C) (2018), an alien who is arriving on land from a contiguous foreign territory may be returned by the Department of Homeland Security to that country pursuant to the Migrant Protection Protocols, regardless of whether the alien arrives at or between a designated port of entry.

 An amicus curiae is not a party in recognition and accreditation proceedings and has no authority to seek further action following the conclusion of an administrative review under 8 C.F.R. § 1292.18.

(1) An alien who has conspired to enter into a marriage for the purpose of evading the immigration laws by seeking to secure a K-1 fiancé(e) nonimmigrant visa is subject to the bar under section 204(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1154(c)(2) (2018).

(2) For purposes of section 204(c)(2) of the Act, a conspiracy requires an agreement to enter into a marriage for the purpose of evading the immigration laws and an overt act in furtherance of that agreement.

 The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the effect of timing of referral; whether the Board applied the correct legal standard and properly exercised its discretion in deciding issues related to the serious nonpolitical crime bar and the persecutor bar; and whether the Board applied the correct standard for determining whether a respondent’s in absentia trial suffered from due process problems.

To prevail on a motion to reopen alleging changed country conditions where the persecution claim was previously denied based on an adverse credibility finding in the underlying proceedings, the respondent must either overcome the prior determination or show that the new claim is independent of the evidence that was found to be not credible.