As the Board explained in its decision in Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), a release on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act (8 U.S.C. § 1226(a)(2)(B) (2018)) is legally distinct from humanitarian parole under INA §212(d)(5). In the 2023 decision, Matter of Cabrera Fernandez, 28 I&N Dec. 747 (BIA 2023), the Board took that further and confirmed that conditional parole under INA §236(a)(2)(B) is not a parole for purposes of adjustment of status. INA 236(a)(2)(B) Parole does not count as a parole for purposes of Adjustment of Status MATTER OF CABRERA-FERNANDEZ Matter of Olty CABRERA-FERNANDEZ, 28 I&N Dec. 747 (BIA 2023) (1) Release on conditional parole under section 236(a)(2)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1226(a)(2)(B) (2018), is legally distinct from release on humanitarian parole under section 212(d)(5)(A) of the INA, 8 U.S.C. § 1182(d)(5)(A) (2018). Matter of Castillo-Padilla, 25 I&N Dec. 257, 258–63 (BIA 2010), followed. (2) Applicants for admission who are released on conditional parole rather than humanitarian parole have not been “inspected and admitted or paroled,” and accordingly are not eligible for adjustment of status under the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as amended.

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.

Immigration and Nationality Act (INA) The INA is a main source of immigration law in the United States. It contains many of the most important provisions of law relevant to immigration proceedings. Title 8 of the Code of Federal Regulations (CFR) Title 8 of the CFR codifies the INA and includes regulations followed by the Department of Homeland Security and EOIR. The regulations cover practice and procedure in immigration proceedings. The Board of Immigration Appeals Board of Immigration Appeals case law precedent.

The Second Circuit has found that NY defines narcotic in a way that is overbroad and includes substances that are not on the federally controlled substance schedules and therefore, under the categorical approach, are not controlled substance offenses. U.S. v. Minter, No. 21-3102 (2d Cir. 2023) The issue on appeal is whether Defendant’s 2014 conviction under New York Penal Law Section 220.39(1) for the sale of cocaine was for a “serious drug offense” and therefore qualifies as a predicate offense for the purposes of a sentencing enhancement under the ACCA. The Second Circuit affirmed, holding that New York’s definition of cocaine is categorically broader than its federal counterpart, thus, Defendant’s cocaine conviction cannot serve as a predicate ACCA offense. The government argued that under Gonzalez v. Duenas-Alvarez, that even if the New York definition of cocaine is broadly construed to criminalize all its isomers, Minter must show a “realistic probability, not a theoretical possibility,” that New York’s statute is broader in practice. The court explained that here, the New York statute applies on its face to all cocaine isomers; the CSA does not. In citing Hylton, the court wrote, “When the state law is facially overbroad, we look no further.” NOTE: Reason to believe charges do not require a conviction. See reason to believe. NY Penal Law § 220.39: Criminal sale of a controlled substance in the third degree There are several offenses prohibiting selling drugs in the New York Penal Code. Most require that you sell or attempt to sell a minimum amount of specific types of drugs in order to be prosecuted. You will have committed the crime of criminal sale of a controlled substance in the third degree under New York Penal Code § 220.39 if you knowingly and unlawfully sell drugs as follows: In addition you could be prosecuted for criminal sale of a controlled substance in the third degree if you sell narcotics to someone who is under the age of 21, or you sell a stimulant, hallucinogen, hallucinogenic substance, or lysergic acid diethylamide and you previously have been convicted of a drug offense.

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.

Matter of Stockwell On November 21, 2019, the United States Citizenship and Immigration Services (USCIS) announced that it had updated its Policy Manual (PM) in a policy alert titled “Adjustment on New Basis After Termination of Conditional Permanent Residence” [PDF version]. An alien who is admitted to the United States as a conditional permanent resident is barred from pursuing adjustment of status under section 245(a) while he or she is in conditional permanent resident status. See INA 245(d). The Board of Immigration Appeals (BIA) held in 1991 that this bar does not apply to an alien who was admitted to the United States as a conditional permanent resident status but whose conditional permanent resident status was terminated. Matter of Stockwell, 20 I&N Dec. 309 (BIA 1991). The USCIS’s new guidance is designed to ensure uniformity in the USCIS’s handling of adjustment applications filed by aliens who were admitted as conditional permanent residents but whose conditional permanent resident status was subsequently terminated. The Board began by noting that INA 245(d) was added to the INA as part of the Marriage Fraud Amendments of 1986, part of what it described as “a comprehensive statutory scheme to deter immigration-related marriage fraud.” Section 216 itself, the Board explained, “was designed to check the validity of marriages and to ensure that aliens could not sidestep the immigration laws by entering into a fraudulent marriage.” The INS codified regulations to implement the section 245(d) bar at 8 CFR 245.1(b)(12) (1991). The regulation, in the pertinent part, stated that “[a]ny alien who is already an alien lawfully admitted to the United States for permanent residence on a conditional basis pursuant to section 216 of the Act” was barred from adjustment under INA 245(a). The Board found that it was clear that Congress intended for any alien in conditional permanent resident status to be ineligible for adjustment of status. Regarding the open question of aliens whose conditional permanent resident status was terminated, the Board agreed with the Immigration Judge’s conclusion that the bar was only intended to apply “to aliens currently holding conditional permanent resident status.” The Board agreed with the Immigration Judge’s finding the regulatory language dispositive, and noted that the INS had omitted any mention of the regulation in its arguments. The Board subsequently affirmed the Immigration Judge’s decision granting the respondent’s application for adjustment of status in the exercise of discretion. Relevant Statutes An alien who obtains permanent resident status on the basis of marriage to a U.S. citizen or lawful permanent resident, and that alien’s derivative sons or daughters, is admitted to the United States as a permanent resident on a conditional basis. INA 216(a)(1). An alien who obtains status as an alien entrepreneur (employment-based fifth preference) and his or her derivative spouse and/or children is also admitted as a permanent resident on a conditional basis. INA 216A(a)(1). Conditional permanent residents must subsequently petition to have the conditions on their status removed. The requirements for having conditions removed are different for spouses (see INA 216) and entrepreneurs (see INA 216A). A conditional permanent resident under INA 216 or INA 216A may not adjust status on an alternative basis under INA 245(a). See INA 245(d); 8 CFR 245.1(c)(5). The statutes do not address the ability of an alien who was admitted as a conditional permanent resident, but whose status was subsequently terminated, to adjust status under INA 245(a). In the next section, we will examine how the BIA resolved this question. New USCIS Guidance on Adjustment for Former Conditional Permanent Residents The new USCIS guidance on adjustment cases involving aliens who were admitted as conditional permanent residents is found at 7 USCIS-PM B.7(G) [PDF version]. The PM notes that under statutes and regulations, an alien admitted in conditional permanent resident status is not permitted to adjust status under INA 245(a) while holding such status. Instead, the alien must comply with section 216 (family cases) or 216A (entrepreneur cases) to pursue the removal of conditions from his or her permanent resident status. However, in accord with Matter of Stockwell, the PM explains that this prohibition on adjustment only applies when the alien is currently in lawful conditional permanent resident status. Under Matter of Stockwell, “the bar no longer applies if USCIS terminates the alien’s [conditional permanent resident] status.” The USCIS may terminate an alien’s conditional permanent resident status for any of the reasons stated in INA 216 (family cases) or 216A (entrepreneur cases). The USCIS generally issues a Notice to Appear upon terminating an alien’s conditional permanent resident status. The PM states that although an immigration judge may review the termination of conditional permanent resident status in an alien’s subsequent removal proceedings, the USCIS’s position is that the bar to adjustment of status found in 245(d) becomes ineffective upon the USCIS’s decision to terminate conditional permanent resident status. Therefore, “it is not necessary that an immigration judge have affirmed USCIS’ decision to terminate the alien’s [conditional permanent resident] status before the alien may file a new adjustment application.” In accord with the statutes, regulations, Matter of Stockwell, and the USCIS’s interpretation of the foregoing, an alien whose conditional permanent resident status has been terminated may adjust status under INA 245(a) if: The alien has a new basis for adjustment;The alien is otherwise eligible to adjust; andUSCIS has jurisdiction over the adjustment application. The USCIS makes clear that an alien must have a new basis for adjustment of status. That is, “the alien may not reuse the immigrant petition associated with the previous [conditional permanent resident] adjustment or admission.” An alien initially admitted as a K nonimmigrant fiancé(e) may only re-adjust status on the basis of an approved Form I-130, Petition for Alien Relative, filed by the same U.S. citizen who filed the Form I-129F Petition for Alien Fiancé(e), on his or her behalf. The PM adds that the alien must be otherwise eligible for adjustment of status, including by not being inadmissible or barred from adjustment under INA 245(c). In short, the alien must meet the generally applicable requirements for adjustment. If the USCIS grants the former conditional permanent resident’s adjustment application, it “generally considers the date of admission to be the date USCIS approved the

Fraud & Misrepresentation Ground of Inadmissibility Inadmissibility for fraud or misrepresentation under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018). Willful Misrepresentation Matter of O-M-O-, 28 I&N Dec. 191, 196 (BIA 2021) Cooper v. Harris, 137 S. Ct. 1455, 1465 (2017) Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case Materiality of a Statement See Matter of Munroe, 26 I&N Dec. 428, 430 (BIA 2014). Matter of MENSAH, 28 I&N Dec. 288 (BIA 2021) Link to case Authority to Inquire into Bona Fides of Marriage at Adjustment of Status See MARRIAGE FRAUD for more on this. Matter of Bosuego Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979, 1980) In Matter of Bosuego, the Board concluded that the materiality requirement in former section 212(a)(19) was satisfied if one of the following was true: 1. “The alien is excludable on the true facts”; or 2. “The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might well have resulted in a proper determination that he be excluded.” Id. at 127. Matter of Y-L- Matter of Y-L-, 24 I&N Dec. 151, 159 (BIA 2007) [PDF version] Matter of D-R- Matter of D-R-, 25 I&N Dec. 445 (BIA 2011) (“Matter of D-R- 2011”) [PDF version] Matter of KAGUMBAS, 28 I&N Dec. 400 (BIA 2021) An Immigration Judge has the authority to inquire into the bona fides of a marriage when considering an application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018). FULL DECISION FRAUD/MISREPRESENTATION WAIVER