Matter of R-T-P-, 28 I&N Dec. 828 (BIA 2024) (1) A proper remedy for a violation of the claim-processing rule at section 239(a)(1)(G)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a)(1)(G)(i) (2018), should (1) result in a notice to appear as a single document; (2) be consistent with the rules governing the procedures used for remedy; (3) help to promote the underlying purpose of claim-processing rules generally and the rule that the notice to appear include the time and place of the hearing in particular; and (4) not prejudice the respondent. (2) Written amendments made by an Immigration Judge, upon the motion of the Department of Homeland Security, to the time and place of the hearing on the notice to appear may satisfy the requirements for a proper remedy to a noncompliant notice to appear. Full Decision. Defects in the Notice to Appear & Remedies This decision finds that an Immigration Judge may remedy a defective Notice to Appear by making handwritten amendments to it in Court when requested to do so by the Department of Homeland Security. A Respondent can object to an NTA for being defective up until the time that pleadings are completed.  Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). However, such an objection will not have much effect after this decision if the Immigration Judge may simply remedy the defect and proceed with the case. This decision is an anti-climatic conclusion to a string of cases relating to defective NTA’s. In 2021, the Supreme Court held that an NTA that lacks the time and place of the initial hearing before the IJ was not remedied by a subsequent notice of hearing. Niz-Chavez v. Garland, 593 U.S. 155 (2021). Following Niz-Chavez, the BIA issued Matter of Fernandes, 28 I&N Dec. 605 (BIA 2022). In Matter of Fernandes, the BIA found that IJs may allow DHS to remedy a deficient NTA without ordering termination. However, the decision failed to specify exactly how DHS might remedy a deficient NTA. In Matter of Aguilar Hernandez, the BIA found that DHS could not remedy a deficient NTA by filing Form I-261. Matter of Aguilar Hernandez, 28 I&N Dec. 774 (BIA 2024). Most recently, the Supreme Court in Campos-Chaves v. Garland held that a respondent served with a noncompliant NTA may still be ordered removed in absentia under INA section 240(b)(5)(A), if the respondent received a notice of hearing under INA section 239(a)(2) and subsequently failed to appear at the hearing. Campos-Chaves v. Garland, 144 S. Ct. 1637, 1647 (2024).

Matter of Mogtabi Hassan AZRAG, 28 I&N Dec. 784 (BIA 2024) February 23, 2024 the Board of Immigration Appeals issued a precedential decision regarding the circumstances under which a State Court vacates a conviction, which is extremely similar to this exact issue. The Board addressed whether the State’s vacatur would be recognized for immigration purposes. See Matter of Azrag, 28 I&N Dec. 784 (BIA 2024). In that case a noncitizen in Kansas was convicted of a removable offense. The State of Kansas ended up vacating that criminal conviction and allowing him to plea to a lower charge that, if recognized for immigration purposes, would defeat the charges of removability and allow him to keep his legal permanent resident status.     The Board found insufficient evidence in the record to determine that the convictions were vacated because of a defect in his criminal proceedings (that is, the constitutional right to effective assistance of counsel). The general rule with state court vacaturs is that they are recognized for immigration purposes when they are related to a substantive or procedural defect in the underlying proceedings; they are not recognized when they are done for purely rehabilitative purposes, such as to avoid immigration consequences. The Clean Slate Act does not vacate convictions, rather seals them, but it does so for rehabilitative purposes. The records are sealed after a set period of years upon showing rehabilitation. It has nothing to do with any defect in the underlying court proceedings or the law, so it would never be recognized for immigration purposes pursuant to Matter of Azrag, 28 I&N Dec. 784 (BIA 2024). If your conviction is vacated because of legal reasons relating to the underlying case then immigration will recognize that but cases that are disposed of for rehabilitation alone will remain as convictions will full force and effect. Full Decision.

In Matter of Garcia, 28 I&N Dec. 693 (BIA 2023) the Board of Immigration Appeals (BIA) held that the controlling circuit law in immigration court proceedings is the law governing the geographic location of the immigration court where venue lies.  A year later the Board clarified this further in Matter of M-N-I-, 28 I&N Dec. 803 (BIA 2024), explaining that since choice of law is dependent on venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. [See Full Decision] The proceedings commenced with the filing of a Notice to Appear (“NTA”) at the Cleveland, Ohio Immigration Court, which is within the jurisdiction of the United States Court of Appeals for the Sixth Circuit. The Cleveland Immigration Court was the designated administrative control court for hearings docketed at Moshannon at that time. See 8 C.F.R. § 1003.11 (2024) (“An administrative control Immigration Court is one that creates and maintains Records of Proceedings for Immigration Courts within an assigned geographical area.”). The respondent’s hearing notices were issued from the Cleveland Immigration Court, and the internet-based hearings were conducted by an Immigration Judge who was physically located in Richmond, Virginia. The Elizabeth, New Jersey Immigration Court was later assigned administrative control over the respondent’s case and that Court is located within the jurisdiction of the United States Court of Appeals for the Third Circuit. The Immigration Judge then issued a decision in that case applying Third Circuit case law, under the impression that since the administrative control over the case transferred to the New Jersey Court and that Court is in the Third Circuit, then Third Circuit case law should control the decision in that case. The issue on appeal then became, is the case law of the location where the proceedings were initiated (the Sixth Circuit) controlling or the case law of the location that had administrative control over the case controlling (the Third Circuit). The BIA explains in Matter M-N-I-, that administrative control is not the same as venue and a case can be transferred to another immigration court through a change of administrative control but that is not the same as a change of venue. The administrative control change did not change the venue of the case. The agency’s administrative control designation over a record of proceedings does not replace nor circumvent the regulatory requirements for a change of venue. See Matter of L-M-P-, 27 I&N Dec. 265, 267 (BIA 2018) (affirming that neither the Immigration Judge nor the Board has the “authority to disregard the regulations, which have the force and effect of law”). Even if the agency’s administrative control designation over a record of proceedings changes during the removal proceedings, the agency may not effectuate a venue change unilaterally from the Immigration Court where jurisdiction vested to a newly designated Immigration Court. Cf. 8 C.F.R. § 1003.10(b) (2020) (providing that Immigration Judges may only exercise the powers and duties delegated to them by the Immigration and Nationality Act and by the Attorney General through regulation). For venue to change in these described circumstances, a motion for a change of venue by one of the parties is required. See 8 C.F.R. § 1003.20(b). The Board concluded that the Judge should have applied Sixth Circuit case law because that is where venue was proper since neither party moved for a change of venue. “We recently held in Matter of Garcia that ‘the controlling circuit law in Immigration Court proceedings for choice of law purposes is the law governing the geographic location of the Immigration Court where venue lies, namely where jurisdiction vests and proceedings commence upon the filing of a charging document, and will only change if an Immigration Judge subsequently grants a change of venue to another Immigration Court.’ Matter of Garcia, 28 I&N Dec. 693 703 (BIA 2023) (emphasis added); see also 8 C.F.R. §§ 1003.14(a), 1003.20(a)–(b) (2024).” Venue is not necessarily static and may change over the course of removal proceedings. However, only a party may initiate a change in venue and may only do so via a motion to change venue. 8 C.F.R. § 1003.20(b); see also Matter of Garcia, 28 I&N Dec. at 703 (providing that the filing of a Form I-830, Notice to EOIR: Alien Address, does not amount to a change of venue request). As Matter of Garcia suggests, venue—and the corresponding choice of law determination—is distinct from an administrative control court designation. Although some interplay exists between an ImmigrationCourt’s administrative control over a case and that case’s venue for choice of law purposes, the agency’s administrative control designation over a record of proceedings does not replace nor circumvent the regulatory requirements for a change of venue. See Matter of L-M-P-, 27 I&N Dec. 265, 267 (BIA 2018) (affirming that neither the Immigration Judge nor the Board has the “authority to disregard the regulations, which have the force and effect of law”). Even if the agency’s administrative control designation over a record of proceedings changes during the removal proceedings, the agency may not effectuate a venue change unilaterally from the Immigration Court where jurisdiction vested to a newly designated Immigration Court. Cf. 8 C.F.R. § 1003.10(b) (2020) (providing that Immigration Judges may only exercise the powers and duties delegated to them by the Immigration and Nationality Act and by the Attorney General through regulation). Since choice of law is dependent upon venue in Immigration Court proceedings, the controlling circuit law is not affected by a change in the administrative control court and will only change upon the granting of a motion to change venue. See Matter of Garcia, 28 I&N Dec. at 703.

Returning Lawful Permanent Resident BIA CASE LAW Matter of Pena, 26 I&N Dec. 613 (BIA 2015) An alien returning to the United States who has been granted lawful permanent resident status cannot be regarded as seeking an admission and may not be charged with inadmissibility under section 212(a) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a) (2012), if he or she does not fall within any of the exceptions in section 101(a)(13)(C) of the Act, 8 U.S.C. § 1101(a)(13)(C) (2012). Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003), distinguished. Matter of Valanzuela-Felix, 26 I&N Dec. 53 (BIA 2012) When the Department of Homeland Security paroles a returning lawful permanent resident for prosecution, it need not have all the evidence to sustain its burden of proving that the alien is an applicant for admission but may ordinarily rely on the results of a subsequent prosecution to meet that burden in later removal proceedings. Matter of Rivens, 25 I&N Dec. 623 (BIA 2011) (1) In order to establish that a returning lawful permanent resident alien is to be treated as an applicant for admission to the United States, the Department of Homeland Security has the burden of proving by clear and convincing evidence that one of the six exceptions to the general rule for lawful permanent residents set forth at section 101(a)(13)(C) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(13)(C) (2006), applies. (2) The offense of accessory after the fact is a crime involving moral turpitude, but only if the underlying offense is such a crime. Matter of Collado, 21 I&N Dec. 1061 (BIA 1998) (1) A lawful permanent resident of the United States described in sections 101(a)(13)(C)(I)-(vi) of the Immigration and Nationality Act (to be codified at 8 U.S.C. § 1101(a)(13)(C)(i)-(vi)) is to be regarded as “seeking an admission into the United States for purposes of the immigration laws,” without further inquiry into the nature and circumstances of a departure from and return to this country. (2) The Immigration Judge erred in finding that theFleuti doctrine, first enunciated by the United States Supreme Court in Rosenberg v. Fleuti, 374 U.S. 449 (1963), requires the admission into the United States of a returning lawful permanent resident alien who falls within the definition of section 101(a)(13)(C)(v) of the Act, if that alien’s departure from the United States was “brief, casual, and innocent.”

AGGRAVATED FELONIES BIA CASE LAW Accessory After the Fact Matter of Batista, 21 I&N Dec. 955 (BIA 1997) (1) The offense of accessory after the fact to a drug-trafficking crime, pursuant to 18 U.S.C. §3 (Supp. V 1993), is not considered an inchoate crime and is not sufficiently related to a controlled substance violation to support a finding of deportability pursuant to section 241(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). (2) The respondent’s conviction pursuant to 18 U.S.C. § 3 establishes his deportability as an alien convicted of an aggravated felony under section 241(a)(2)(A)(iii) of the Act,because the offense of accessory after the fact falls within the definition of an obstruction of justice crime under section 101(a)(43)(S) of the Act, 8 U.S.C.A. §1101(a)(43)(S) (West Supp. 1997), and because the respondent’s sentence, regardless of any suspension of the imposition or execution of that sentence, “is at least one year.” Alien Smuggling Matter of Alvarado-Alvino, 22 I&N Dec. 718 (BIA 1999) 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, 8U.S.C. § 1324(a)(1)(A) and (2) (Supp. II 1996). Arson Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed. Matter of Palacios, 22 I&N Dec. 434 (BIA 1998) 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, 8U.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. Burglary Matter of Perez, 22 I&N Dec. 1325 (BIA 2000) (Burglary of a Vehicle) 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). Commercial Bribery Matter of Gruenangerl, 25 I&N Dec. 351 (BIA 2010) The crime of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A) (2006) is not an offense “relating to” commercial bribery and is therefore not an aggravated felony under section 101(a)(43)(R) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(R) (2006). Conspiracy Matter of Richardson, 25 I&N Dec. 226 (BIA 2010) (1) The term “conspiracy” in section 101(a)(43)(U) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(U) (2006), is not limited to conspiracies that require the commission of an overt act in furtherance of the conspiracy by one of the conspirators. (2) An alien who was only convicted of conspiracy to commit an aggravated felony and is removable on the basis of that conviction under section 101(a)(43)(U) of the Act may not also be found removable for the underlying substantive offense, even though the record of conviction shows that the conspirators actually committed the substantive offense. Controlled Substances Matter of Ferreira, 26 I&N Dec. 415 (BIA 2014) Where a State statute on its face covers a controlled substance not included in the Federal controlled substances schedules, there must be a realistic probability that the State would prosecute conduct under the statute that falls outside the generic definition of the removable offense to defeat a charge of removability under the categorical approach. Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014) Sale of a controlled substance in violation of section 893.13(1)(a)(1) of the Florida Statutes, which lacks a mens rea element with respect to the illicit nature of the substance but requires knowledge of its presence and includes an affirmative defense for ignorance of its unlawful nature, is an “illicit trafficking” aggravated felony under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2012). Matter of Flores, 26 I&N Dec. 155 (BIA 2013) The offense of traveling in interstate commerce with the intent to distribute the proceeds of an unlawful drug enterprise in violation of 18 U.S.C. § 1952(a)(1)(A) (2006) is not an “aggravated felony” under section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), because it is neither a “drug trafficking crime” under 18 U.S.C. § 924(c) (2006) nor “illicit trafficking in a controlled substance.” Matter of Davis, 20 I&N Dec. 536 (BIA 1992), followed. Matter of Castro-Rodriguez, 25 I&N Dec. 698 (BIA 2012) An alien convicted of possession of marijuana with intent to distribute under State law has the burden to show that the offense is not an aggravated felony because it involved a “small amount of marihuana for no remuneration” within the meaning of 21 U.S.C. § 841(b)(4) (2006), which the alien may establish by presenting evidence outside of the record of conviction. Matter of Aruna, 24 I&N Dec. 452 (BIA 2008), clarified. Matter of Sanchez-Cornejo, 25 I&N Dec. 273 (BIA 2010) The offense of delivery of a simulated controlled substance in violation of Texas law is not an aggravated felony, as defined by section 101(a)(43)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B) (2006), but it is a violation of a law relating to a controlled substance under former section 241(a)(2)(B)(i) of the Act, 8 U.S.C. § 1251(a)(2)(B)(i) (1994). Matter of Aruna, 24 I&N Dec. 452 (BIA 2008) Absent

BIA CASE LAW REGARDING ADMISSIONS Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014) (1) Adjustment of status constitutes an “admission” for purposes of determining an alien’s removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony “at any time after admission.” Matter of Rosas, 22 I&N Dec. 616 (BIA 1999), reaffirmed. (2) An element listed in a specification in the Manual for Courts-Martial (“MCM”), which must be pled and proved beyond a reasonable doubt, is the functional equivalent of an “element” of a criminal offense for immigration purposes. (3) The crime of sodomy by force in violation of article 125 of the Uniform Code of Military Justice, 10 U.S.C. § 925 (2000), and the Punitive Articles of the MCM relating to sodomy, is a crime of violence under 18 U.S.C. § 16 (2012) within the definition of an aggravated felony under section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)(2012). Matter of Koljenovic, 25 I&N Dec. 219 (BIA 2010) An alien who entered the United States without inspection and later obtained lawful permanent resident status through adjustment of status has “previously been admitted to the United States as an alien lawfully admitted for permanent residence” and must therefore satisfy the 7-year continuous residence requirement of section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h) (2006), to be eligible for a waiver of inadmissibility. Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) For purposes of establishing eligibility for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2006), an alien seeking to show that he or she has been “admitted” to the United States pursuant to section 101(a)(13)(A) of the Act, 8 U.S.C. § 1101(a)(13)(A) (2006), need only prove procedural regularity in his or her entry, which does not require the alien to be questioned by immigration authorities or be admitted in a particular status. Matter of Areguillin, 17 I&N Dec. 308 (BIA 1980), reaffirmed.